Muhammad Mohidin Sait vs The Municipal Commissioners for the City of Madras

Abnold White, C.J.—In this case the plaintiff sued for an injunction to restrain the defendants (the Municipal Commissioners for the City of

Madras) from continuing to use a certain plot of ground as a burning and burial ground, and he claimed damages for special injury which he alleged

he had sustained by reason of the use of the ground in question as a burning and burial ground.

The first question for consideration is whether the evidence shows that the use of the ground as a burning and burial ground constitutes an

actionable nuisance.

The second issue in the case is whether the user of the defendants'' land in the manner alleged in the plaint is a nuisance to the plaintiff and is as

such actionable? The finding of the learned Judge upon this issue was in the negative.

In the Court below the plaintiff sought to make out that the water in his well had become polluted by reason of corpses having been buried in

close proximity to his well, and that the smoke and smell from the burning corpses amounted to a nuisance and had caused his property to

deteriorate in value.

With regard to the alleged pollution of water, the plaintiff stated that corpses have been buried within 40 feet of his well.

The evidence, however, shows that the distance was some 70 feet. The plan shows about 69 feet and the plaintiff''s witness, Major Roberison,

put it at ""within 75 feet."" The plaintiff stated in general terms that the water had become polluted to his own knowledge. As be admittedly left the

premises in June 1897 and as it was not suggested he had tested the water since that date, the pollution (if any) to which he spoke must have taken

place before June 1897. So far as I can sea, beyond a general statement that the water ""got spoiled"" the plaintiff nowhere states in his evidence that

prior to 1897 the well water was pure, One of his witnesses, however, who spoke to the state of things in August 1896 says that at that date the

water was good and was used for drinking and bathing. There is a sewage farm in the immediate neighbourhood which, the plaintiff stated, was

extended in 1897, and brought within a furlong or a furlong and-a-half of his premises. The plaintiff also stated that the well water smelt of sewage,

and one of his own witnesses, Mr. Tamiar, said in cross-examination that the contamination of the water by the sewage of itself would make the

premises uninhabitable even without considering the burial ground. Major Robertson who was called by the plaintiff as an expert witness gave

evidence to the effect that the well received its water by percolation and that there were graves within the drainage area of the well. He put the

drainage or catchment area at 100 feet-presumably a radius of 100 feet from the well. In cross-examination Major Robertson admitted that his

examination only occupied him ten minutes or a quarter of an hour. Ha stated that the extent of the catchment area depended on the depth of the

well and the nature of the soil. He stated that he did not measure the depth of the well but that he inferred that it was shallow and that the water

percolated into it. He also stated that the surface of the land was sandy, that he did not examine to see how deep the sand want down, but that he

inferred that it went down deep from what he saw. He also said that he did not think it would be possible to give a scientific opinion wholly from

what he had seen. This was all the evidence with reference to the alleged pollution of the well, and on this evidence I have no hesitation in saying

that, in my judgment, the plaintiff failed to prove that the well had become polluted by reason of corpses having been buried in its vicinity.

As regards the alleged nuisance by smoke and smell the evidence was that the nearest burning platform is about 160 yards distant from the

plaintiff''s premises. The plaintiff, so far as his personal knowledge was concerned, could only speak to the state of things from September 1896 to

June 1897. He put the number of corpses which were burned in the course of the day ""in ordinary times"" as 4 to 8, and he said that when a sea-

breeze blew the smoke was carried over his premises and blown through the windows of his bungalow. As a matter of fact, as proved by the

evidence of Sir George Moore, the President of the Municipal Commission, there were 107 burnings in 1897, 135 in 1898 and 132 in 1899-i.e.,

less than 3 a week. The plaintiff stated that he found it impossible to use the premises after 1897 as the smell was unbearable.

Sultan Mohidin (plaintiff''s third witness) stated that a bad smell came from the burial and burning ground and that when the wind blew the

smoke got into the bungalow. This witness had taken the premises for a short time on the condition that he should be allowed to give them up when

the burial ground was opened and he left immediately after the opening of the ground. His objection to living in the neighbourhood of a burial and

burning ground was a general one, and his evidence as to this particular ground being a nuisance is worth very little.

Muhammad Kasim, plaintiff''s fourth witness, stated that he took the bungalow on a lease in May 1899 and went to live there with his family,

that he remained there two weeks and then left as his children fell sick and a doctor had given him certain advice. This witness had known the

property before he agreed to take the bungalow and up to the time of going to live there appears to have thought the house a suitable one for a

holiday resort.

Mr. Mitchell (plaintiff''s fifth witness) also knew the premises before he thought of occupying the bungalow. He stated that he took his wife

there one evening, that there was a lot of smoke about and a rather offensive smell, that he was told it came from the cremation platform and that

he then declined to take the house With regard to this witness, it is to be observed that although he knew the place well (he said in his evidence ""I

frequently pass on my beat and know the land thoroughly.... I know there was a burial and burning ground there which had been there for the last

four years"") he appears to have been desirous of becoming a tenant of the bungalow until the particular occasion to which he referred in his

evidence.

Major Robertson also gave general evidence to the effect that the burning of the corpses would in time have an injurious effect on the health of

persons living in the bungalow. He did not enter the burial ground and his investigations must have been somewhat cursory as he put the distance of

the cremation platforms from the plaintiff''s premises at 75 to 100 yards-the actual distance being 160. He stated in cross-examination that the

smoke of burning corpses at 100 yards would'' not be injurious but unpleasant-nauseating. It is clear that the plaintiffs claim for special damages is

grossly exaggerated. His statement in the Court below was that he had spent Rs. 10,000 on the property. The learned Judge found this statement

to be wholly untrue, and the plaintiff''s counsel in this Court did not attempt to controvert this finding. There is, however, I think, some evidence to

show that the market value of the premises has become depreciated by reason of the opening of the burial ground.

Now, no doubt, the use of property so as to cause substantial discomfort to neighbours by causing offensive smells, Bamford v. Turnley 31 L.

J.Q.B. 286 or by producing large volumes of smoke, Crump v. Lambert L.R. 3 Eq. 409 may give rise to an actionable nuisance, but, as it is put by

Thesiger, L.J., in delivering the judgment of the Court of appeal in Sturges v. Bridgnan L.R. 11 Ch. D. 852 ""Whether anything is a nuisance or not

is a question to be determined not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a

nuisance in Belgrave Square would not necessarily be so in Bermondsey.

In this connection it is to be observed that the plaintiff himself carried on business as a tanner and a sewage farm existed in the immediate

neighbourhood. The plaintiff''s witness Mr.'' Mitchell described the place as ""rather an outlandish spot not much inhabited"" and his witness Major

Robertson described it as ""a remote desolate place.

The general observations of Pollock, C.B., in his judgment in Bamford v. Turnley 31 L.J. Q.B. 286 although the learned Judge differed from

the majority of the Court upon the actual question under consideration-are no doubt, good law. He observed ""moat certainly, in my judgment, it

cannot be laid down as a legal proposition or doctrine, that anything, which under any circumstances, lessens the comfort or endangers the health

or safety of a neighbour, must necessarily be an actionable nuisance. That may be a nuisance in Grosvenor Square which would be none in

Smithfield Market. That may be a nuisance at midday which would not be a nuisance at midnight. That may be a nuisance which is permanent and

continual, which would be no nuisance if temporary or occasional only. A clock striking the hour, or a bell ringing for some domestic purpose, may

be a nuisance if unreasonably loud and discordant, of which the jury alone must judge; but although not unreasonably loud, if the owner from some

whim or caprice made the clock strike the hour every ten minutes, or the bell ring continually, I think that a jury would be justified in considering it

to be a very great nuisance. In general, a kitchen chimney, suitable to the establishment to which it belonged, could not be deemed a nuisance; but

if built in an inconvenient place or manner, on purpose to annoy the neighbours, it might, I think, very properly be treated as one. The compromises

that belong to social life and upon which the peace and comfort of it mainly depend will furnish an indefinite number of examples in which some

apparent natural right is invaded or some enjoyment abridged."" In determining whether the use of the burning ground amounts to an actionable

nuisance I think we are bound to take into consideration the fact that the object of the burning ground is to provide a convenient and sanitary

means of disposing of corpses in accordance with the general sentiment of the community. It has been held by this Court Queen-Empress v.

Saminadha Pillai ILR 19 Mad. 461 that the use of a place dedicated for the communal purpose of cremation in a way not calculated to aggravate

the inconveniences necessarily incident to such an act as it is generally performed in this country does not amount to a public nuisance within

Section 290 of the Penal Code on the ground that discomfort and annoyance are caused to persons near the place. The Judges remark:-

It is hardly necessary to observe that not only the religious sentiments of all sections of the community, but also the requirements of general health

and comfort, absolutely demand that corpses shall be disposed of as early as practicable, so as not to prove hurtful to the living. It is this imperative

necessity that, as a general rule, casts upon persons having charge of corpses not only as a matter of social, but also of legal obligation, the duty of

arranging for the disposal of those corpses in a reasonably speedy, decent and inoffensive way. And to facilitate the discharge of such an important

duty, it has bean, as is well known, the general and immemorial custom to set apart some spots for use by the public as places of sepulture or

cremation. The absolute necessity for some such common provision will become apparent on a moment''s reflection, It is sufficient to refer be but

one-not an unimportant-consideration bearing on the matter, viz., that the number of persons who are in a position to find for interment or

cremation of the bodies of their deceased relations, friends or dependents, places of their own, which, while being convenient to those persons

themselves, will not be a nuisance to others, is extremely small when compared with the millions of landless men and women who, if required to do

so, would find it impossible to obtain such spots for similar use by them. Hence the existence of common burial and cremation grounds in almost

every inhabited village in this Presidency. And when persons, like the accused, entitled to use a particular spot dedicated for the communal

purpose of cremation, use it for that purpose in a manner neither unusual nor calculated to aggravate the inconveniences necessarily incident to such

an act as it is generally performed in this country, it must be admitted that he does what is perfectly lawful. To hold that an act so properly done,

not only in the exercise of a right of which the people of this country are generally so very tenacious, but also in the discharge of a serious duty,

amounts, as the prosecution contends, to an offence, would be highly unreasonable and unjust.

In the present case it is not alleged in the plaint and no attempt was made to prove that there has been or is anything negligent or unreasonable

in the way in which the burial ground is used or in the methods adopted for the disposal of corpses. Applying the principles which underlie the

decisions to which I have referred to the facts of the present case I am of opinion that the learned Judge''s finding that no actionable nuisance has

been proved is right.

The question, however, whether-assuming a nuisance to have been proved-the defendants are protected has been fully argued and I propose

to deal with it.

The defendants are the Municipal Commissioners for the City of Madras. Section 392 of the City of Madras Municipal Act imposes on the

Commissioners the duty of providing burial or burning grounds. The section is in these terms :-"" The Commissioners shall from time to time out of

the Municipal fund, with the sanction of the Governor in Council, provide a sufficient number of convenient and fitting places for burial or burning

grounds either within or without the limits of the city and may acquire land for this purpose. Section 458 in terms gives a right of action to any

person aggrieved by the failure of the Commissioners to perform a duty imposed upon them by the Act.

Sir George Moore, the President of the Commission since 1886, stated in his evidence that the place was chosen as the most suitable and

convenient place for the community for whom it was necessary, and that in his judgment a more suitable place could not have been found. As has

been already pointed out, the plaintiff''s witness Mr. Mitchell described the place as ""rather an outlandish spot not much inhabited"" and his sixth

witness Major Robertson described it as ""a remote, desolate place."" Sir George Moore stated that since 1887 it bad been the policy of the

Commissioners to take grave-yards out of the populous parts of the municipality irrespective of whether the grave-yards were overcrowded or

not. He also stated that he had been over the plaintiff''s premises probably every year since 1887 and that whenever he had seen the premises they

had been uninhabited. He admitted that the cemetery might have been taken further north, the only objection to this being that it would be further

from the people and not so convenient.

Now Section 392 of the Act is imperative in its terms. The Commissioners are bound to provide burial and burning grounds somewhere,

though they have no doubt to exercise a discretion in the selection of sites. As regards this part of the case the plaintiff''s proposition of law

appeared to be, although it is not formally raised in the pleadings, that the mere fact that he, a neighbouring landowner, has sustained damage

shows that the place provided by the Commissioners as a burning and burial ground is not ""convenient and fitting,"" I cannot assent to this

proposition. In his judgment; in London and Brighton Railway Co. v. Truman L.R. 11 App. Cas. 45 Lord Blackburn cites the following passage

from the judgment of North, J., in that case :-"" In the present case it is pleaded that the company were guilty of negligence in selecting a place for

their cattle-yard and pen which was not suitable for the purpose. The fact that a nuisance is proved to exist without any negligence in the mode of

conducting the business there shows that the place is not suitable for the purpose."" Lord Blackburn says he cannot agree with this.

It was argued on behalf of the defendants that the discretion of the Commissioners in selecting a place as ""convenient and fitting"" cannot be

questioned unless it could be shown that they exercised the so-called discretion capriciously or perversely and that a person who has sustained an

injury which he would not have sustained if another site had been selected has no right of action. The decision of this Court in The Municipal

Commissioners for the City of Madras v. Parthasaradhi ILR 11 Mad. 341 and that of the Bombay High Court in Nagar Valab Narsi v. The

Municipality of Dhandhuka ILR 12 Bom. 490 were cited in support of this view.

It is to be observed that the passage in the judgment of Sir George Jessel in Duke of Bedford v. Dawson L.R. 20 Eq. 353 which was referred

to by the learned Counsel for the respondents in this connection had reference to an enactment which in general terms empowered a public body

to take land and erect buildings thereon for a specified purpose. I am inclined to think that these observations of Sir George Jessel and the passage

in the judgment of Lord Selborne to which he refers are not altogether reconcilable with the judgments of the House of Lords in the more recent

oases to which I shall have to refer later.

It appears to me that these words ''convenient and fitting'' neither help nor hinder the plaintiff. The same canons of construction and the same

principles of law would be applicable if they found no place in the section and the section ran ""the commissioners shall...provide...places for burial

or burning grounds, &c.

Assuming the use of the burning ground constitutes a nuisance which would give a right of action if the defendants were not a statutory body

who acted under statutory powers in opening the burning ground, the question is - is the present case governed by the decision of the House of

Lords in Metropolitan Asylum District v. Hill L.R. 6 App. Cas. 193 and the oases which follow this decision or does it fall within the chain of

authorities of which London and Brighton Railway Co. v. Truman L.B. 11 App. Cas. 45 may be described as the leading case? In Metropolitan

Asylum District v. Hill L.R. 6 App. Cas. 193 the Statute authorised, but did not enjoin, the purchase of lands and the erection of buildings for the

purposes of the Act. The defendants created a small-pox hospital near the plaintiff''s properties. The defendants were under no statutory obligation

to erect a small-pox hospital anywhere. They were merely authorised to do so. In the case now before the Court the defendants are under a

statutory obligation to provide burning and burial grounds which may be either within or without the limits of the city. One of the grounds on which

the present case is distinguishable from the hospital case is that the duty to open burial grounds is mandatory or imperative whereas the enactment

in question in the small-pox hospital case merely authorised the erection of hospitals. The present case may also be distinguished on the ground that

the Legislature in the present case clearly contemplated and authorised some interference with private rights of property since Section 392

empowers the Commissioners to acquire land compulsorily for the purpose of burning grounds. In the hospital case the Statute gave no power to

acquire land compulsorily. The recent decision of the Privy Council Canadian Pacific Railway v. Parke [1899] A.C. 635 in which the decision in

Metropolitan Asylum District v. Hill L.R. 6 App. Cas. 193 was followed also went upon the ground that the authority given to do the act which

resulted in injury to a third party was permissive and not imperative.

Again, in the hospital case, the statute made no provision for compensation to injured parties, and in the Privy Council case just referred to

although provision was made for compensation in certain cases the compensation clauses did not cover the injury sustained by the plaintiffs in that

case. The Act under consideration in the case before us contains two compensation Sections 237 and 436. Section 237 says ""If any land be taken

under the provisions of this Act, the commissioners shall make compensation to the owner or occupier of any adjoining land or building for any

direct or immediate damage done thereto by the taking of such land."" Section 436 is a general clause and is in the following terms: ""The

commissioners may make compensation, out of the municipal fund, to all persons sustaining any damage by reason of the exercise of any of the

powers vested in the commissioners, their officers or servants under and by virtue of this Act.

The fact that the enactment itself gives a right to compensation is a consideration which may properly be taken into account. See the judgment

of Lord Blackburn in the small-pox case. In the present case the plaintiff does not claim compensation under the Statute. His claim is for damages

by reason of his common law rights having been infringed.

In the case of London and Brighton Railway Co. v. Truman L.R. 11 App. Cas. 45 the Company were authorised to purchase by agreement

(in addition to the lands which they were empowered to acquire compulsorily) lands not exceeding fifty acres, in such places as should be deemed

eligible for the purpose of providing yards and other conveniences for receiving and keeping, amongst other things, cattle intended to be conveyed

by railway. The Act contained no provision for compensation in respect of lands so purchased by agreement. The Company bought land and used

it for a cattle-yard. The use of the land amounted to a nuisance, which, but for the Act, would have been actionable. There was no negligence in

the mode in which the Company conducted the business. The House of Lords, reversing the decisions of the Court of Appeal and of North, J.,

held that the Company were protected and that the adjoining occupiers were not entitled to an injunction. It is to be observed that in this case (a)

the Company were merely authorised, not enjoined, to erect cattle-sheds; (b) the Act contained no provision for compensation to parties who

might be injured by the erection of cattle-sheds.

In the case before us (a) the defendants are under a statutory obligation to open burning grounds; (b) provision is made for compensation. In

these two respects, therefore, it may be said that as regards the question of law under consideration the position of the present defendants is

stronger than that of the Railway Company in the Railway case.

The plaintiff''s counsel laid stress upon the fact that the local limits within which burning grounds are to be opened are in no way circumscribed

or defined, The words are no doubt quite general: ""Either within or without the City limits,"" and he sought to distinguish the present case from

London and Brighton Railway Co. v. Truman L.R. 11 App. Cas. 45 upon this ground. It seems to me that this suggested distinction is more

apparent than real. It is true that in London and Brighton Railway Co. v. Truman L.R. 11 App. Cas. 45 the lands which the Company were

authorised to acquire for the purpose of erecting cattle-sheds were not to exceed 50 acres, but it is also true that the Statute imposed no limitation

on the discretion of the Company in the selection of the site of these lands. The Lord Chancellor, however, points out that, as a matter of physical

necessity the lands could only be taken where they could be used for the purpose of the railway authorised by the Act. So, in the present case,

though, I admit, in a less degree, the burning ground could only be opened at a place where it was accessible to the community for whose benefit it

was opened. Otherwise, the object which the Legislature had in view in enjoining the opening of burning grounds would be frustrated. The words

within or without the limits of the city"" must be read seoundum subjectam materiam and with reference to the requirements of the community in

connection with the disposal of corpses and the general necessities of the case. The following passage and judgment of Lord Selborne in the small-

pox hospital case, seems to me, without unduly straining the language, to cover the present case: ""If the Legislature had authorised some

compulsory interference with private rights property, within local limits which it might have thought fit to define, for the purpose of establishing this

asylum to be used for the reception of patients suffering from small-pox or other infectious disorders, and had provided for compensation to those

who might be thereby injuriously affected (in such cases and under such conditions as it might have prescribed) the present case might have been

like Rex v. Pease 4 B. & Ad. 30 and Hammer Smith, &c., Railway Co. v. Brand L.R. 4 H.L. 171 And, with reference to this question of the

selection of a site, the same learned Judge, in his judgment in London and Brighton Railway Co. v. Truman L.R. 11 App. Cas. 45 observes: ""It

was urged that the Company having an option as to place were bund to exercise it so that on adjoining landowner (or I suppose any other person)

should suffer detriment from the subsequent use of the land for the authorised purposes. If it were the duty of the Company in deciding upon the

eligibility of the place to be governed by such considerations, they might be placed in very great difficulty. For even if any place could be found

where no person would be liable to suffer detriment from the establishment of loading and unloading places for cattle near his land, it is obvious that

the other considerations relative to the convenience of the Company''s traffic, which the Legislature must primarily have had in view, might have to

be disregarded. The natural (and to the Company and the public the most convenient) places for receiving and discharging cattle traffic to and from

a railway must be in connection with, or in proximity to, stations at or near market towns or other populous places, certainly not in fields remote

from any human habitations. But even if the Company were to establish a cattle station at a distance from any human habitation, it seems possible,

from the case of Sturges v. Bridgman L.R. 11 Ch. D. 852 that the law of nuisance might still pursue them there unless protected from it on the

principle of Bex v. Pease 4 B. & Ad. 30 in the event of an adjoining landowner afterwards thinking fit to build a house upon his own property.

In my opinion the present case approaches more nearly to London and Brighton Railway Co. v. Truman L.R. 11 App. Cas. 45 than to

Metropolitan Asylum District v. Hill L.R. 6 App. Cas. 193 and I think it is governed by the former and not by the latter authority. With regard to

the Bombay case which was relied upon by the appellant Sayad Jafir Saheb v. Sayad Kadir Bahiman ILR 12 Bom. 634 the present case is

distinguishable on the ground that there was nothing in the Bombay Act which necessarily required the erection of privies.

In my judgment no actionable nuisance has been proved, but assuming that the proper finding on the evidence would be that an actionable

nuisance has been proved, I think that the defendants are protected for the reasons I have stated.

This being my view, it is not necessary for me to deal with the question of limitation. If it were, I should be disposed to hold that as against the

present defendants the plaintiff''s cause of action arose when the ground began to be used as a burning ground, and that as against them he is time

barred both u/s 433 of the Act and also under the general law.

The appeal is dismissed with costs. I certify for two counsel.

Moore, J.

The plaintiff, as the owner of a bungalow, factory and garden situated in Suryanarayana Chetti Street, Tondiarpet, Madras, has brought this

suit against the Municipal Commissioners for the City of Madras, alleging that in consequence of the defendants having in 1896 opened a burial

and burning ground close to his premises, those premises have become unhealthy, insanitary, and unfit for residential purposes, that he has been

unable to work his factory for drying and dressing tanned skins and hides and that his property has deteriorated in value to the extent of Rs.

12,000. He, therefore, prays for an injunction restraining the defendants from using the land acquired by them as a burning and burial ground and

claims Rs. 14,880 as damages. The defendants in their written statement plead, inter alia, that the plot of land mentioned in the plaint was acquired

and provided by them as a burial and burning ground under the statutory obligation laid on them by the provisions of Section 392 of the Madras

Municipal Act and that is a convenient and fitting place to be used for such purposes. The second issue framed by Mr. Justice Shephard is as to

whether the user of the defendants'' land in the manner alleged in the plaint is a nuisance to the plaintiff and is as such actionable?

In considering the question as to whether the defendants have by using the land mentioned in the plaint as a burial and burning ground caused

nuisance to the plaintiff, it is necessary in the first instance to refer in some detail to the evidence given by the plaintiff himself. Before doing so,

however, I am constrained to observe that that evidence shows that the plaintiff is by no means a truthful or accurate witness. This is proved by the

following facts. The plaintiff deposes that, after he purchased the property to which this suit relates, he expended a sum of Rs. 10,000 on it. He

says that, when he bought the property in June 1893, there was a bungalow on it but no other buildings and that he added a kitchen, bath-room

and factory and put a wall round the bungalow. There is no wall round the bungalow and Mr. Cammiade, whose evidence is accepted by both

sides as trustworthy, deposes that, when he occupied the premises 18 years ago, there was a bungalow and a tannery and that the present tannery

is simply the old tannery renovated. The plaintiff has made no attempt to prove that he spent Rs. 10,000 or anything like that sum on buildings, &c.

He produces no documents or accounts in support of this assertion and Sir George Moore, who has known the place since 1887 and visited the

plaintiff''s premises year by year ever since then, states that he does not believe that the plaintiff has spent Rs. 10 on them. It is perfectly certain that

the plaintiff made a most untruthful statement when he deposed that he expended Rs. 10,000 on the buildings, &c. As to his accuracy one matter

will be enough to allude to. He deposes that on an average 10 corpses were burnt in a day on the burning ground. Almost immediately afterwards

he altered this assertion and said that the daily average was 4, 5, 7 or 8. If in the years 1897, 1898 and 1899 an average of 10 a day had been

burned, the total would have been 10,950 while at 4 a day it would be 4,380. Sir George Moore however shows that the total number of corpses

burnt in those years is only 374.

The following is the description given by Mr. Rencontre, the plaintiff''s solicitor, in his letter (exhibit D) of the 31st May 1899 to the President

of the Municipality, of the nuisance complained of: ""The smoke emitted from the burning of the corpses enters my client''s dwelling house and is

suffocating and the odour that exudes from the corpses is sickening, so much so that since the plot of ground is used as a burning and burial ground

my client''s said house was and is untenanted. My client himself tried to live there but had to leave it in consequence of the unhealthy smoke and

noxious gas emitted from the said burning ground. The smoke hangs like a cloud over my client''s premises for hours together."" The evidence put

forward to make good these assertions is in the main as follows : -The plaintiff deposes that he bought the premises in June 1893. He lived there till

the end of 1894 and then leased them to Sultan Mohidin who occupied them till September or October 1896, i.e., till a month or so after the

opening of the burning ground. An attempt has been made to show that Sultan Mohidin left because of the nuisance now complained of but this is

not borne out by the plaintiff''s own evidence. What he says is that this tenant had told him all along that he would leave as soon as the burial and

burning ground was opened and that be did so. After Sultan Mohidin had left the plaintiff had his skins stored on the premises and continued to go

there. He says, however, that he was unable to bear the smoke from the corpses and that he bought other premises in which to live and carry on

his business. The statement is, however, contradicted by him later on in his deposition when giving evidence as to why Police Inspector Mitchell

refused to live in the house. He says that early in 1899 Mr. Mitchell proposed to take the house on lease from him for six months as he wanted it

as a place of residence for his wife and children. Mrs. Mitchell, however, having visited the place refused to live in the house as there was a bad

smell there. As to this the plaintiff deposes that the smell was bad in 1897, 1898 and 1899 but that he did not complain as he did not want to

bother the Municipality. He then adds that ho first realised that it was necessary to complain when Mr. Mitchell refused to live in the house. He did

not believe his other tenants but when Mr. Mitchell complained, he thought that there must be something in it. This is absolutely unreconcilable with

his assertion that he had to give up using the factory in 1897 because he was unable to bear the smoke from the corpses. There are some 60

coconut trees on the land round the plaintiff''s bungalow. He leased these to one Murugappa Gramani in 1896 as he wanted to draw toddy from

them, but the lessee gave up the lease after a year, and the plaintiff was not able to get any one else to take it up. He deposes that people said that,

as the burial ground was situated opposite to his land, they were afraid to go there at night and that they also objected to the smoke arising from

the burning ground during the day time. The plaintiff further deposes that after Inspector Mitchell had refused to occupy the house one Muhammad

Kasim, it appears, (exhibit C) agreed to be the plaintiff''s tenant for six months from 1st June 1899, but he gave up the house almost immediately as

the water in the well was not good and as there was an offensive smell from the burning ground. It does not appear that any attempt was made to

let the premises from the date on which Muhammad Kasim left up to the filing of this suit.

The evidence put forward to corroborate the plaintiff''s allegations as to the nuisance caused by the smoke from the burning ground is meagre

and unsatisfactory. Sultan Mohidin Saheb admits that the agreement that he entered into with the plaintiff was that he should vacate the premises as

soon as the burial ground was opened, He deposes that there was a bad smell from the burial and burning ground but as it is shown that he left

almost immediately after the burning ground had been opened and When only a few corpses had actually been burnt there, his evidence as to this is

of but little value. The next witness is Muhammad Kasim. He says that he vacated the house because his children having got ill he sent for

Lieutenant-Colonel Lee, I.M.S., who advised him to leave. Colonel Lee has not been examined and it is impossible to say why he gave this advice.

It is most probable that it was because of the bad water-supply and the proximity of the sewage farm that he recommended that the witness should

take his children away. In the absence of evidence as to why the Medical officer considered the house unhealthy no importance can be attached to

the fact that he advised this witness to leave the place. Police Inspector Mitchell''s evidence is very remarkable. Ho knew the place well as he used

to visit it constantly when on his beat and it must be presumed that he would not have proposed to take his wife and children there for change of air

if he thought that the smoke arising from the burning ground caused a serious nuisance to persons living in the house. He deposes that there was ""a

lot of smoke about and a rather offensive smell which he was told came from the cremation platform. He does not however, appear to have taken

the trouble to ascertain for himself whence the smoke came. He cannot have found the smell offensive for he agreed to take the buildings on a lease

for some months provided his wife liked them. He took Mrs. Mitchell there one evening and she, he says, stopped close to the large sewage

channel, which he states is about 150 yards distant from the house, found the smell most offensive and would not go any closer to the building.

Mrs. Mitchell has not been examined but as far as can be seen from her husband''s evidence it was the smell of the sewage farm that she objected

to and there is cogent evidence that the smell of the sewage is most powerful and offensive. P. Murugappa Gramani who took the lease of the

toddy-giving trees from the plaintiff for a year deposes that he refused to renew the lease because the tree climbera refused to work owing to the

smell from the burning ground. It is impossible to credit this assertion. Rajagopal Gramani, one of the plaintiff''s witnesses, deposes that dhobies

wash clothes on the plaintiff''s premises. There are no grounds for supposing that the nostrils of toddy drawers are more sensitive than those of

washermen.

It is shown that the plaintiff''s bungalow and factory are in a dilapidated condition and that they have not been occupied for a considerable time.

The plaintiff''s case is that they have remained unoccupied because owing to the nuisance caused by the burial and burning ground opened by the

defendants no tenant will live there. The evidence, however, does not, as has been shown, bear out this contention. It is of course not possible to

say positively why it is that the premises have remained unoccupied but there is cogent evidence on the record to prove that it is the proximity of

the sewage farm and not of the burning ground that has frightened away intending tenants. As to this Mr. Cammiade, a witness whose evidence

appears to be deserving of far greater weight than that which can be attached to most of the evidence put forward for the plaintiff, says ""practically

the contamination of the water by the sewage of itself would make the bungalow uninhabitable even without considering the burial ground. The

stench from the sewage farm is very bad"" and to this the plaintiff himself adds as follows: ""The sewage farm affects the premises seriously. It

depreciates the land by half its value. It has depreciated mine to that extent. People will not take my bungalow apart from the burial and burning

ground because of the sewage farm.

A great deal has been said at the hearing of this appeal regarding a well in the garden attached to the plaintiff''s bungalow the water in which, it

is alleged, has been contaminated in consequence of the proximity of the burial ground. There is some evidence that the water in this well was fairly

pure and good when the plaintiff acquired the premises and there can be no doubt that when this suit was filed it had become foul and unfit for use.

There is, however, no evidence of any value to prove that this change in the quality of the water is due to the burial ground. The evidence of Major

Robertson, I.M.S., as to this is worthless.

Taking the evidence therefore as a whole it must, in my opinion, be held that no nuisance whatever has been caused to the plaintiff by the burial

ground. There is some evidence that the burning ground is a source of nuisance to a certain extent to any one occupying the plaintiff''s premises.

That nuisance is said to be caused by the smell of the smoke arising from the burning ground whenever corpses are consumed there. It will be

found, however, that of the burning platforms on which the corpses are burnt the nearest to the plaintiff''s bungalow is at a distance of 485 feet. Sir

George Moore''s evidence also shows that the number of corpses burnt is about one every three days. These two facts, as it appears to me,

explain why it is that the plaintiff has been unable to produce any trustworthy evidence that any appreciable nuisance is caused by the burning of

corpses to person occupying his premises. The plaintiff in order to be entitled to either an injunction or damages must show that the injury suffered

by him is not merely nominal but real and substantial. This he has in my opinion failed to prove. I concur with the learned Chief Justice in holding

that this appeal should be dismissed with costs.