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2000 DIGILAW 715 (PNJ)

Anil Garg v. Dhingra Construction Company

2000-07-12

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This is a civil revision and has been directed against the order dated 14.10.1999, passed by the Additional District Judge, Gurgaon, who partly allowed the appeal of the petitioners and gave the direction "the respondent is ordered to maintain status quo ante at the spot regarding installation and/or operating the plant." 2. Still not satisfied with the order of the first appellate Court, the present revision. 3. The petitioners filed a suit for permanent injunction with the averments that they are owners in possession of the land fully described in para-1 of the plaint which is being used by them for agricultural purposes. The said land and the adjoining lands are agricultural farm lands. The labourers of the petitioners engaged for agricultural purposes are residing in the said land of the petitioners along with their families. The respondent M/s. Dhingra Construction Company claims itself to be the owner of the adjoining land. The respondent illegally and unlawfully wants to install a Hot Mix Plant in the said land which is adjacent to both sets of land of the petitioners. The respondent has not obtained any permission from the concerned authorities to install a Hot Mix Plant or to change the nature of the land from agricultural to commercial. The respondent has not got sanctioned his lay-out plan and approval of change of land use from the office of the District Town and Country Planning. As per the petitioners, the respondent had no right to change the nature of the land and it cannot start commercial activity or install an industry in the land in question. The activities of the respondent create pollution which is hazardous for human beings and dangerous for the agricultural lands of the petitioners. The smoke emitted by the Hot Mix Plant is very harmful and hazardous and will pollute the whole atmosphere. A pungent smell is emitted from the burning of oil and charcoal, which causes severe breathing problems. It is a great act of nuisance on the part of the respondent and the plaintiffs are likely to suffer an irreparable injury if the activities of the respondent are allowed to continue. The plaintiffs even issued a notice to the District Town and Country Planning, Gurgaon, regarding the illegal activities of the respondent. 4. It is a great act of nuisance on the part of the respondent and the plaintiffs are likely to suffer an irreparable injury if the activities of the respondent are allowed to continue. The plaintiffs even issued a notice to the District Town and Country Planning, Gurgaon, regarding the illegal activities of the respondent. 4. With the above broad allegations, the plaintiff-petitioners filed a suit that the defendant be restrained permanently from running the Hot Mix Plant. Along with the suit, the petitioners also filed an application under Order 39 Rules 1 and 2, CPC. The suit as well as the application were contested by the respondent and it was pleaded that the petitioners have misrepresented the true facts. The respondent has already obtained a No Objection Certificate from the Haryana State Pollution Control Board, Chandigarh, vide memo No. HSPCB/NOC/50 dated 22.4.1999. The respondent has not violated any provision of law as it intended to erect and operate the hot mixture plant at the spot in accordance with the law. The plant is a fully computerised plant with built in computer controlled pollution devices. The emission of effluents from the plant at the time of its operation is much below the limits of effluent discharge prescribed by the Board. The plant is not a conventional one. The land on which the respondent has installed the plant is not within the controlled area and, therefore, permission from the Director, Town and Country Planning was not required. The respondent purchased this land for a sum of Rs. 9,25,000/-. The respondent further incurred expenditure of Rs. 35 lacs for the purchase of machinery. With this broad defence that the petitioners have no case, the respondent prayed for the dismissal of the application. 5. The parties addressed arguments before the trial Court, who for the reasons given in the order dismissed the application of the petitioners. Aggrieved by the order dated 3.5.1999, the petitioners filed the first appeal under Order 43, CPC, before the Additional District Judge, Gurgaon, who partly allowed the appeal and modified the order of the trial Court and gave the directions as referred to above. The petitioners are still not satisfied with the order of the first appellate Court and hence the present revision. 6. The petitioners are still not satisfied with the order of the first appellate Court and hence the present revision. 6. During the pendency of this revision, the High Court thought it proper to add Haryana State Pollution Control Board as a party to the proceedings and the directions were given to the Board to state the facts on affidavit with regard to the plant of the respondent. An affidavit dated 3.7.2000 has been sworn by Dr. C.V. Singh, Regional Officer of the Board, who has stated on oath that the Consent to Establish (NOC) was granted to the unit vide memo dated 22.4.1999 and the unit started production in June, 1999. It was also stated by Dr. Singh that a show cause notice for closure dated 26.7.1999 was issued to the unit under Section 31A of Air (Prevention and Control of Pollution) Act, 1981 for non-compliance of observations made by the Board and the unit was directed to provide sampling facilities to enable the Board to draw legal sample. The legal sample of emission was drawn on 26.5.2000 and emission was found to be exceeding the prescribed limit. The SPM level was 3906 mg/NM3 against the limit of 150 mg/NM3. Resultantly, a show cause notice was issued to the unit to provide adequate pollution control device within 21 days vide letter dated 7.6.2000. The unit vide letter dated 19.6.2000 informed that they had installed adequate pollution control devices and it was requested to the Board to collect sample to ascertain its efficiency. The unit was, again, inspected, after modification of pollution control devices and the sample of the unit was collected on 28.6.2000 and the result of the emission was found to be within the prescribed limit, i.e. SPM level was 118 mg/NM3. 7. I have heard the counsel for the parties and with their assistance have gone through the record of this case. 8. Counsel for the petitioners was highly critical with the orders of the courts below and submitted that the petitioners have a prima facie case to succeed as the agricultural land/farm houses of the petitioners are being affected on account of the commercial activity of the respondent. She submitted that as per the directions of the Honble Supreme Court, the plants like Hot Mix Plant cannot be installed on the agricultural land. She submitted that as per the directions of the Honble Supreme Court, the plants like Hot Mix Plant cannot be installed on the agricultural land. She further submitted that the latest certificate issued by the Board is nothing but a favour document procured by the respondent in connivance with the officials of the Board. She submitted that how within a span of a few days, the emission can decrease from 3906 mg/NM3 to 118 mg/NM3 against the permissible limit of 150 mg/NM3. She further submitted that it is necessary and in the interest of justice that respondent be directed not to operate the unit till the disposal of the suit. 9. On the contrary, Mr. Sibal, counsel for the respondent, has relied upon the latest certificate issued by the Board dated 30.6.2000 vide which the percentage of emission has been reduced to 118 mg/NM3. He submitted that in the light of this report, the petitioners have no case. Mr. Sarin, counsel for the Board, has also supported the contents of the affidavit dated 3.7.2000 and the supporting documents. 10. After considering the rival contentions of the parties, I am of the considered opinion that this revision must fail because the petitioners have not been able to prove, prima facie, that the activities of the respondent are in violation of the directions of the Honble Supreme Court contained in J.T. 1999(5) S.C. 18 (M.C. Mehta v. UOI), which has been relied upon by the petitioners. The observations of the Honble Supreme Court are that such like plants should not be installed unless NOC is obtained from the Board. 11. In the present case, it is, prima facie, established that the Board gave permission to the respondent before the installation of the plant. It cannot be said that the Board is acting in connivance with the respondent. It never showed any favour to the respondent. Rather, at one point of time, a show cause notice was issued to the respondent that the unit should be closed on the basis of the sample. In pursuance to the said notice, the respondent got installed one instrument with the help of which the pollution has decreased to 118 mg/NM3. At this stage, it cannot be said that the certificate issued by the Board is a fabrication or a false document or it is a procured document. In pursuance to the said notice, the respondent got installed one instrument with the help of which the pollution has decreased to 118 mg/NM3. At this stage, it cannot be said that the certificate issued by the Board is a fabrication or a false document or it is a procured document. Even otherwise, the balance of convenience does not lie in favour of the petitioners. The respondent has installed the industry after taking necessary permission from the concerned authority. The respondent has spent a huge amount. There is no evidence on the record, prima facie, to show that the crops of the petitioners have withered away on account of pollution or any labourer of the petitioner has suffered any disease on account of the smoke emitted from the chimney of the factory of the respondent. Further, the petition cannot be allowed in view of the fact that the petitioners have efficacious remedy by way of approaching the Board. 12. In this view of the matter, I do not see any merit in this revision and the same is hereby dismissed with no order as to costs. Nothing stated above shall amount to expression of my opinion on the merits of the case. Revision dismissed.