Whether court can grant temporary mandatory injunction for removal of tray from balcony used for feeding birds?

Grant of temporary mandatory injunction to restrain

nuisance. Whether a defendant is entitled to feed the birds by

placing a tray below her balcony window so as to cause

nuisance to the other members of the Society in which she is

residing ? Whether pending suit for grant of permanent

injunction for causing nuisance by bird feedings, can

temporary mandatory injunction be granted for removal of

tray from balcony used for feeding birds even if there is no

prayer in the suit plaint for removal of tray ?

Held :- Considered that the relief of removal of the tray from

which the birds are fed is incidental to the relief of injunction

sought by the Plaintiffs in main suit and therefore the

Plaintiffs are entitled seek temporary mandatory injunction.

Howsoever, much one may want to feed birds and animals,

the same would obviously have to be done in a manner as not

to cause nuisance to the neighbours or other residents. It is

well settled that a person cannot use his premises for causing

nuisance to his neighbours or other residents. Relied upon

the famous English case of John Rylands and Jehu Horrocks v. 8

Thomas Fletcher (1868) LR H 330, wherein it was held that

the person who, for his own purpose, brings on his land and

collects and keeps there anything likely to do mischief if it

escapes, must keep it in at his peril, and if he does not do so,

is prima faice answerable for all the damage which is the

natural consequence of its escape. In the instant case, there

was enough material at the prima facie stage to indicate that

on account of bird feeding, nuisance is caused to the Plaintiffs

and other members of the Society. The Trial Court has

therefore observed that the Defendant may feed the birds at

some other place where no nuisance is likely to be caused to

anybody.

Bombay High Court

Padma Thakore And Anr vs Dilip Sumanlal Shah And Ors on 12 July, 2016

Bench: R.M. Savant

Read full judgment:Click here
Citation: 2016 SCC OnLine Bom 4785

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Whether Injunction restraining feeding of birds from balcony resulting in nuisance is valid?

Mumbai: Feeding of birds andanimals from your apartmentpremises must be done without causing nuisance to your neighbours and other buildingresidents, the Bombay high court ruled on Tuesday. A metaltray to feed birds, installed by an animal rights activist outside the balcony of her flat in a Worli highrise, will have to go, Justice Rajendra Savant said, dismissing her plea against an interim trial court order to remove it.

Jigeesha Thakore, secretary of the All India Animal Welfare Association who runs a shelter/sterilization centre at the BMC's dog pound at Dhobi Ghat, Mahalaxmi, was dragged to court by her neighbours in the 20-storey Venus housing society over the tray she had installed in her balcony. Dilip and Meena Shah, an elderly couple who live in the flat below, claimed the daily Feeding of birds was causing nuisance and hygiene problems for them.

"Nobody can have a grievance about (Jigeesha's) love for birds and animals. The question is if she is entitled to feed them by placing a tray below her balcony window so as to cause nuisance to others in the society," the judge said, adding, "Howsoever much one may want to feed birds and animals, it would obviously have to be done in a manner as not to cause nuisance to the neighbours or other residents. It is well settled that a person cannot use his premises for causing nuisance to his neighbours or other residents."

The high court held that there was enough material at the prima facie stage to indicate that on account of the bird-feeding, nuisance was caused to other members of the society. "The trial court has, therefore, observed that she may feed the birds at some other place where no nuisance is likely to be caused to anybody. She may consider the suggestion of the court," said the judge. The court has stayed its order for four weeks.
Jigeesha's lawyers claimed that the couple had not raised any objections for more than a decade and had lodged the case only in 2011, with a view to harass her. The Shahs claimed that bird feeding starts around 6.30am daily and is done several times a day. Farsan is fed to crows while pigeonsare fed jowar grains three times a day. The filth as well as bird droppings, which fall in their balcony, had worsened Meena's skin condition and asthma, the couple said in their complaint.

The court said there was substance in the claims made by the Shahs; the society staff had also complained about grains spilling from the tray as well as bird droppings. "It would also have to be presumed that the birds are habituated to being fed from the tray and, therefore, must be flocking there in large numbers. The flocking of the birds obviously has the effect of generating noise on account of flapping of their wings and the humming noise which the pigeons usually make," the judge added, upholding the interim order of the trial court asking Jigeesha to remove the feeding tray from the balcony. A petition challenging the trial court's jurisdiction to hear the case is pending before another bench of the high court.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 1240 of 2013 and Civil Application No. 1473 of 2013

Decided On: 12.07.2016

Padma Thakore and Ors.
Vs.
Dilip Sumanlal Shah and Ors.

Coram:R.M. Savant, J.
Citation: 2016(6) MHLJ374

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