Judgment :- B.N. Patnaik, J. Plaintiffs in O.S. No. 766 of 1995, on the file of the Munsiff s Court, Ernakular have preferred this revision against the judgment dated 7-11-1995 in C.M. A. No. 73 of 1995, on the file of the II Additional Sub Court, Ernakulam. By the impugned judgment, the learned Sub Judge has set aside the order of injunction granted by the learned Munsiff in I.A. No. 2969 of 1995 against the respondents herein, who are the defendants in the suit. 2. The petitioners filed the suit for a declaration that defendants 1 and 2 have no right to proceed with the construction of the multi-storied building in the plaint schedule property without making provisions for sewage disposal system, drainage and sanitation and for a decree of mandatory injunction directing the 3rd respondent - Greater Cochin Development Authority (for short GCD a ) - not to permit defendants 1 and 2 to make any construction in the plaint schedule property in violation of the Kerala Building Rules. They also prayed for a decree of permanent prohibitory injunction restraining defendants 1 and 2 from proceeding with the construction in the plaint schedule property. 2. There was a partition of the property comprised is Sy. No. 319 of" Kakkanadu Village among the brothers of the plaintiffs. The plaint schedule properly was allotted in favour of one of the brothers, namely Sri. Gangadharan. Defendants 1 and 2 purchased 12 cents of land from Sri. Gangadharan as per sale deed Nos. 104/89 and 324/ 89 of the Thrikkakara Sub Registry. The plaint schedule property which was purchased by defendants 1 and 2 lies on a higher level than that of the residential house and property of the plaintiffs by about 10 feet. Defendants I and 2 started construction of a inullistried building on the plaint schedule property without obtaining any commencement certificate from the concerned authority as stipulated in S.15 of the Town Planning Act. That apart, it: is contended that no provision for disposal of sewage and was it water etc.. having been made in the building, the same shall How into the residential house and property of the plaintiffs. Thai will cause irreparable nuisance and health hazard to them, as and when the proposed building, consisting of 12 fiats are occupied by the Trent owners. having been made in the building, the same shall How into the residential house and property of the plaintiffs. Thai will cause irreparable nuisance and health hazard to them, as and when the proposed building, consisting of 12 fiats are occupied by the Trent owners. The plaint schedule property as well as the properly belonging he plaintiff are located within the area notified under the Detailed Town Planning Schedule for Patiupurackal, Thrikkakara. This scheme was sanctioned by the Government and notified under S.12 of the Town Planning Act. The said scheme is still in force. 3. The defendants in their counter-affidavit have slated that (he residential house and property of the plaintiffs lie at a distance of about 50 feet towards south from she plaint schedule property, being intervened by abroad and another plot. Although the land of the plaintiffs lies at a lower level than that of the plaint schedule property, by the complaint that sewage and waste water from the proposed building would How into the land of the plaintiffs, is not well founded. It is asserted by them that in the plan necessary provision has been made for drainage of waste water etc., from the building and it would not cause any nuisance to the plaintiffs, It is further contended that the plaint Schedule property and that of the plaintiffs are located in Thrikkakara Panchayat, wherein the Kerala Buildings Rules arc not applicable. They also contend that the scheme under the Town Planning Act, which was notified in 1971, is no longer in operation. It lapsed under S.33 of the Town Planning Act. There is, therefore, no necessity 10 obtain any commencement certificate for construction of the building. 4. The plaintiffs-petitioners filed 1. A. Nt). 2969 of 1995 for a temporary injunction under 0.39 Rules 1 and 2 of the Code of Civil Procedure i n the Munsiffs Court praying for an injunction restraining defendants 1 and 2 from proceeding with further construction in the plaint schedule property. Learned Munsiff allowed the prayer amassed an order of injunction restraining the defendants from constructing the building. Defendants 1 and 2 preferred an appeal against the said order of injunction, which was registered as C. M. A. No. 73 of 1995, in the Sub Court, Ernakulam. The learned If Additional Sub Judge, by judgment dl. 7.11.1995, vacated the order of injunction granted by the learned Munsiff. 5. Defendants 1 and 2 preferred an appeal against the said order of injunction, which was registered as C. M. A. No. 73 of 1995, in the Sub Court, Ernakulam. The learned If Additional Sub Judge, by judgment dl. 7.11.1995, vacated the order of injunction granted by the learned Munsiff. 5. The learned Munsiff, by his order dt.13.10.1995, held that defendants 1 and 2 are constructing the building in violation of Ss.15 and 16 of the Town Planning Act. Since, they have not obtained any commencement certificate under S.150/" the Act. they are not entitled to proceed with the construction. Hence he restrained defendants 1 and "2 by a temporary injunction from proceeding with (he construction of the multi-stored building till the disposal of the suit. 6. The learned Sub-Judge, by his judgment dt. 7.11.1995, agreed will) the finding of the learned Munsiff that the building is being constructed in violation of the provisions of the Town Planning Act. But he vacated the injunction order on the ground that no temporary injunction can be granted in view of the fact that S.17 of the Town Planning Act provides an equally efficacious alternate remedy against the apprehended nuisance. He further held that the plaintiffs are not likely to suffer individually from any irreparable loss by the refusal to issue an order of injunction. They-have failed to make out a prima facie case and the balance of, convenience, therefore, lies in favour ofthe defendants. 7. Learned counsel for the petitioners/ plaintiffs mainly urged two grounds for issuing an order of injunction as prayed for. The first ground is that defendants I and 2 should be prevented from constructing the building in violation of the aforesaid provisions of the Town Planning Act. Every citizen, it is contended, has a right to move the cowl to prevent an act which is purported to be done in contravention of any statutory provision. The second ground is that when the multi-stoned building conies up and is occupied by different persons, the sewage water and all other waste materials from the building would cause nuisance by flowing into the residential building and property of the plaintiffs. 8. Learned counsel for respondents 1 and 2 Defendants 1 and 2 contended that the building is not being constructed against any statutory prohibition. 8. Learned counsel for respondents 1 and 2 Defendants 1 and 2 contended that the building is not being constructed against any statutory prohibition. Since no such nuisance has occured, the plaintiffs cannot claim for an injunction to prevent a likely nuisance which is apprehended to lake place on a future date. Moreover, it is also contended that from the plan submitted by the respondents it would be clear that appropriate provisions have been made in the building for sewage disposal and drainage of waste water so as to cause no nuisance to the neighbours and the plaintiffs. 9. Admittedly, the Kerala Building Rules do not apply to the area comprised in Thrikkakara Panchayat, The building in question is located in that area. Hence, it was not necessary on the part of the defendants to obtain permission from the concerned authorities under the Kerala Buildings Rules to construct the building. 10. It is contended by learned counsel for the petitioners that a scheme called "Detailed Town Planning Scheme for Pattupurackal, Thrikkakara" was notified under section 12 of the Town Planning Act. Under section 15 ofthe Act, no person shall within the area included in the scheme, erect or proceed with any building work etc., without obtaining necessary permission which shall he contained in a commencement certificate from the Municipality or Municipal Council or the Director of Town Planning. Under section 16 of the Act, no building shall be constructed or reconstructed in any area in which building is expressly forbidden in the scheme, or which is reserved in (he scheme for any purpose in compatible with building. Since not such permission has been obtained by the defendants, their conduct is illegal and construction of the building in question is unlawful. 11. Learned counsel for the respondent, however, in my opinion rightly, contended that due to long lapse of time from the year of notification, which was made i n 1971, the scheme itself is deemed to have lapsed and abandoned as contemplated in section 33 of the Act. This question has been finally settled in the two Division Bench decisions of this Court. In G.C.D.A. v. Dr. This question has been finally settled in the two Division Bench decisions of this Court. In G.C.D.A. v. Dr. M. Chandrasekhar (1994(1) KLT 778), it has been observed as follows : "As from the date of publication of the scheme under S.12, the owners of the lands and buildings located in the area affected by the scheme held their rights restricted to the extent specified in S.16. But S.33 of the Act provides, that if the land required for the scheme is not acquired within three years from date of notification under S.6 it shall cease !o have effect as a declaration under S.6 of the Land Acquisition Act. Thus if the land is not acquired within three years from the date of notification under S.12, the notification under S.6 lapses, with the result that no step for acquiring the land can be taken. If no step can be taken as required by S.33 for acquiring the land' within (lie period of three years from the date of notification under S.12, the restrictions imposed on the owners by S,16 of the said Act would cease to have effect. As it is not disputed mat the land of respondents 1 and 1 has not been acquired within the period of three years from the date of publication of the notifications under S.12, no step can be taken to acquire the land on the basis that the notification under S.12, is deemed to be a notification under S.6 of the Land Acquisition Act:' In Slate of Kerala v. A.J. Jacob ami others (VV. A. 465 of 1990, arising out of O.P. No. 4956 of 1989 dated 19.1.1996) it has been observed as follows ; "What is after all the sanctity of a scheme formulated under Section 12 of the Town Planning Act if the authorities are not interested in implementing the same? Sub-section (6) enjoins on the authorities a duty to commence the scheme "forthwith". But here is acase where a scheme was dratted in 1972 and was formalized in 1975. With regard to the lands of the respondents, G.C.D.A. has not registered any progress for acquisition proceedings. An excuse now put forward is that there is paucity of funds. But the promptness with which Rs. But here is acase where a scheme was dratted in 1972 and was formalized in 1975. With regard to the lands of the respondents, G.C.D.A. has not registered any progress for acquisition proceedings. An excuse now put forward is that there is paucity of funds. But the promptness with which Rs. 3,50,0007 - was deposited for getting these appeals admitted would stare at the appellants wiled they contend now that acquisition proceedings could not be suited on account of paucity of funds. Learned Government Pleader now contends that there is no time limit for implementation of the scheme. Even if no time is fixed in the Act we cannot countenance a scheme remaining in limbo perennially. Learned single judge has dealt with this aspect and noted that this scheme has only a life of 20 years. That finding is not challenged in these writ appeals. We find no reason to interfere with the impugned judgment." 13. In view of the aforesaid decision of two Division Benches, the dictum laid down by the learned single judge in anto v. Municipal Commissioner (1994(1) KLT 795) does not appear to have had down the law correctly. 14. Learned counsel for the petitioners has produced two documents (Exts. P1 and P1) showing that the town planning authorities have recently declined to give permission to construct buildings in the area and as such, it is contended, Dial the scheme is still deemed to be in force in that area. But, in my opinion, if the authorities" acted in derogate on of the law laid down by thus Court in issuing those two documents, that cannot he a ground to urge that the scheme is in force even though it was not implemented for more than 20 years. 15. In view of what has been stated above, the contention that the respondents/ defendants 1 and 2 have constructed the building in contravention of the law, is not well founded. They are not obliged to obtain any such permission from any authority. 16. 15. In view of what has been stated above, the contention that the respondents/ defendants 1 and 2 have constructed the building in contravention of the law, is not well founded. They are not obliged to obtain any such permission from any authority. 16. The next contention of the learned counsel for the petitioners is that, the temporary injunction should be granted to avert a nuisance that would be perpetuated on the petitioners by not making provisions for sewage and drainage of waste water from the building in question, in a much as the filthy water thereof shall How into the residential building and the land of the petitioners. 17. In Dalpalkumar v. Profiled Singh (1992(1) SCC 719). it is laid down by the Supreme Court as follows : "It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act. on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/ defendant; (2) the court's interference is necessary to protect the party from the species of inquiry. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it. Therefore, the burden is on the plaintiff by evidence aliened by affidavit or otherwise that there is 'a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie-right and infraction of the enjoyment of his property or the right is a condition, for the grant of temporary injunction. Prima facie case is not to be contused with prima facie title which has to be established, on evidence at. the trial. Only prima facie case is a substantial question raised, bonafide. which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. Prima facie case is not to be contused with prima facie title which has to be established, on evidence at. the trial. Only prima facie case is a substantial question raised, bonafide. which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference 'by the Court will result in "irreparable injury" to the party seeking relief and (hat there is no other remedy available to (lie party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one. namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the oilier side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit." IX. The possible nuisance that may occur in future, which is complained of, is a tort, in Jayalaxmi Salt Works (P) Lit!, v. Stale of Gujarat (1994 (1) SCC 1), it is laid down that in general, torts consist of some act done without just cause or excuse. The basic ingredients of tons are injury and damage due to failure to observe duty. The violations which may result in tortuous liability arc breach of duty primarily fixed by the law. 19. The basic ingredients of tons are injury and damage due to failure to observe duty. The violations which may result in tortuous liability arc breach of duty primarily fixed by the law. 19. Clause (c) of Rule 1 of Order 39 C.P.C. contemplates that where in any suit it is proved by affidavit or otherwise that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property i n dispute in the suit, the court may by order grant a temporary injunction to restrain such act, or make such oilier order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or disposition of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in (he suit, as the Court thinks lit, until the disposal of the suit or until further orders. Sub-rule (i) u,' Rule 2 of Order 39 C.P.C. contemplates that in any suit for restraining the defendant from committing a breach of contract or other injury of any kind whether compensation is claimed in the suit or not, the plaintiff may, at any time alter the of commencement the suit, and cither before or alter judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind and arising out of the same contract or relating to the same property or right. The expression "other injury of any kind' is very wide. It comprehends any kind of legal injury. It is contended that a possible nuisance that, would be caused to the Plaintiffs as a result of the construction of the building in question is a legal injury and amounts to a tortious act. 20. This contention has to he considered with reference to the principle of quid lintel. In the brick "law of Injunctions" by CM. Row (7 th Edition), at page 251, it is pointed that in Filcher-v. Balky. Mr. 20. This contention has to he considered with reference to the principle of quid lintel. In the brick "law of Injunctions" by CM. Row (7 th Edition), at page 251, it is pointed that in Filcher-v. Balky. Mr. Justice Parson explained the law as to actions quiet as follows: "There must also he proof that the apprehended damage will, if it comes, be very substantial, i should almost say it must he proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed the damage will be suffered, I think it must be shown, if the damage does occur at any lime, it will. come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him to him in a qui lime! action." Thus it is for the plaintiffs to show that the apprehended damage will he substantial and irreparable and there is absolutely no doubt that the damage is no imminent that, if the remedy is delayed the damage will be suffixed in such a way that it will he impossible for the plaintiffs to protect themselves against it if injunction is not granted. 21. Admittedly, in the present case the building in question has not been occupied t»y anybody nor has it been put to use. The defendants produced the plan of the building, which is marked as Ext. R5. This plan shows that provisions have been made with regard to the disposal of sewage and waste water. The plaintiffs have failed to show as to whether inspite of this arrangement as shown in the plan any nuisance is likely to be caused. There is no imminent danger of suffering the nuisance much less any damage to the property of the plaintiffs. The land where the building in question stands slopes down towards the land of. the plaintiffs in a gradual gradient. The properties are intervened by other pools of land and a road. Learned counsel for the petitioners/ plaintiffs, by relying on the report of the Commissioner, has contended (hat the waste water and the sewage in the building in question shall flow into the land of the plaintiffs which would result i n the nuisance. But, I am afraid,! The properties are intervened by other pools of land and a road. Learned counsel for the petitioners/ plaintiffs, by relying on the report of the Commissioner, has contended (hat the waste water and the sewage in the building in question shall flow into the land of the plaintiffs which would result i n the nuisance. But, I am afraid,! lie mailer has not been viewed i n its proper perspective. In the first place, the slope has been in existence before the construction of the building in question. Secondly, Ext. R.5 would indicate that all precautionary and preventive measures have been taken by the defendants to divert the sewage and waste water of the building to another side so as to prevent the alleged nuisance. Thus, there is no imminent danger to the property of the plaintiffs and there arc no materials to show that this danger cannot be prevented unless an order of injunction is granted. Hence there can be no inference that the plaintiffs would suffer from any irreparable injury, if the construction of the building is not prevented. Thus the principle of quailed is not strictly applicable to the facts of this case. 22. In this context, learned counsel for the plaintiffs/ petitioners points out, by relying on the decision of the Supreme Court in Gaiignbui v. Sitarani (1993 SC 742), that if the situation becomes irreversible by the lime the dispute is decided, injunction restraining the defendants from putting up a construction on the land would be justified. He argues mat once (lie construction is complete and the flats are occupied by the owners, it may not be possible to evict them or demolish the building. In that event, such a possible nuisance cannot he prevented. In my opinion, this argument is not well founded. As has been said above, the principle of quailed is not applicable to this case. Without demolishing any portion of the building, it is possible to avert the apprehended nuisance by constructing proper drainage system which is not an impossibility. 23. In that event, such a possible nuisance cannot he prevented. In my opinion, this argument is not well founded. As has been said above, the principle of quailed is not applicable to this case. Without demolishing any portion of the building, it is possible to avert the apprehended nuisance by constructing proper drainage system which is not an impossibility. 23. Learned Sub Judge held that section 17 of the Town Planning Act provides an equality efficacious remedy against the defendants in a much as under cause (a) of subsection (1) thereof the responsible authority may make a provisional order requiring an owner to remove, pull down or alter within a specified period any building or other work in the area included in the scheme which is such as to contravene the scheme, or in the erection or carrying out of which any provision of the scheme 1 has not been complied with. This order would come into effect on or after the day on which the scheme comes into force. This principle is laid down in clause (b) of section 41 of the Specific Relief Act, 1963. It states that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except i n case of breach of trust. For this principle to apply, three requisites are required to be fulfilled. They are ; (1) there is any other mode of securing relief; (2) the relief obtainable thereby is as efficacious as an injunction: and (3) the plaintiff is certain to secure such relief. In this case, no case is made out that the plaintiffs' are certain to secure such a relief. Hence the observation of the learned Sub Judge that section 17 of the Town Planning Act provides an equally efficacious remedy, is not correct. There is no certainty as to whether after the lapse of the notified scheme the State Government would enforce a similar such scheme again and that any order for demolition of the building in question would certainly he passed, if such a scheme comes into force. 24. For the reasons stated above, I am of the opinion that the plaintiffs have failed to show that they have a primafacie case and that they would suffer irreparable injury if the injunction is not granted. 24. For the reasons stated above, I am of the opinion that the plaintiffs have failed to show that they have a primafacie case and that they would suffer irreparable injury if the injunction is not granted. It is also found that grant of injunction would result comparatively greater inconvenience to the defendants than to the plaintiffs. 25. In the result, I find that there is no merit in this revision petition. It is dismissed. No costs.