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2004 DIGILAW 168 (KER)

K. Y. Ibrahim v. Ayshabeevi

2004-04-06

P.R.RAMAN

body2004
Judgment :- Petitioner is the first defendant in O.S. No. 299/2003 on the file of the Munsiff’s Court, Perambavoor. Plaintiffs are residing very near to the factory set up by the petitioner/first defendant. The suit is instituted for a declaration that the construction and working of the factory in the plaint schedule property is illegal and for a permanent injunction restraining the first defendant from running the factory. There is also a prayer against the authorities not to grant any licence to run the factory in the present condition. 2. It is averred in the plaint in Para 4 that if the factory is allowed to be run it will cause the plaintiffs and their family members various ailments, breathing trouble, head ache etc. It is also alleged that the establishment of the factory is contrary to the distance rule and without obtaining proper sanction from the authorities and without taking necessary precautionary, measures to prevent pollution. Apart from the petitioner, the Secretary of the Grama Panchayat, the District Medical Officer and the Chief Environmental Engineer, Kerala State Pollution Control Board are also made parties as defendants 2 to 5. Along with the suit, an application for temporary injunction was filed before the trial court to restrain the working of the factory and the authorities from granting any licence to run the factory in the present condition. 3. The trial court on point No.2 found that the plaintiffs/petitioners are not entitled to get a temporary injunction restraining respondents 2 to 4 (defendants 2 to 4) from issuing necessary license or permission to the unit of the first defendant – petitioner herein. But in view of the finding on Issue No.1 the plaintiffs/ petitioners were found entitled to get a temporary injunction restraining the defendant/petitioner from running the plywood unit in the plaint schedule property very near to their residence and from causing nuisance in the same. It was found on point No.1 that the plaintiffs/petitioners in the interlocutory application have established a strong prima facie case in the injunction application and considering the close lie of the present unit, it was found just and proper to pass an ad interim order restringing the first defendant/petitioner running the unit till the disposal of the suit. It was found on point No.1 that the plaintiffs/petitioners in the interlocutory application have established a strong prima facie case in the injunction application and considering the close lie of the present unit, it was found just and proper to pass an ad interim order restringing the first defendant/petitioner running the unit till the disposal of the suit. Aggrieved thereby, petitioner herein who is the first respondent in the I.A. and first defendant in the suit, preferred an appeal as C.M.A. 42/2003 before the Principal Sub Judge, North Paravur, who after elaborate consideration of the matter, confirmed the order passed by the trial court, against which the present civil revision petition is preferred. 4. The first question that arises for consideration is as to whether a civil revision petition under section 115 of the Code of Civil procedure is maintainable against an interim injunction granted by the trial court, which is confirmed in appeal? 5. As per the proviso added to Section 115 of the Code of Civil Procedure, revision will lie only in cases where the order, if had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding. In Shiv Shakti Co. op Housing Society, Nagpur v. Swaraj Developers (2003 (6) SCC 659) it was held that “ the bar under the proviso to Section 115 will operate if the order in favour of the party applying for revision even if allowed will not finally dispose of the suit or other proceedings and that interim order is not revisable under Section 115 of the Code of Civil Procedure. 6. Even though the learned counsel for the petitioner Sri. Ramakumar raised a contention that ‘other proceedings’ referred to in Section 115 will take in a temporary injunction order as confirmed by the appellate court and therefore, revisable under Section 115 of the Code of Civil Procedure. I am unable to agree with this contention. The legislature has inserted the proviso with intention to accelerate the trial of the suit without being stalled at intermediary stages. Before a suit is finally decided there may be various pre-trial stages to be completed. Each such steps cannot be understood as a separate proceeding. The legislature has used the word ‘suit or other proceeding’ to mean the two differently. Before a suit is finally decided there may be various pre-trial stages to be completed. Each such steps cannot be understood as a separate proceeding. The legislature has used the word ‘suit or other proceeding’ to mean the two differently. Hence any orders passed during the pendency of the suit cannot be construed as independent proceedings coming under the expression “other proceedings” referred to in the proviso. “Other proceedings” referred to must be understood as a proceeding other than the suit. It could be either in an execution proceeding or in a proceeding under some special statute and the like but can never be understood to include an order passed during the pendency of the suit. When a suit for injunction is filed and the party seek a temporary relief in the mean time, the court will consider the grant of such interim relief to preserve the right of the parties based on the settled principles governing grant of such interim injunction. Therefore, I find that the present civil revision petition is not maintainable under section 115 of the Code of Civil Procedure. The decision of this Court in Thilakan v. Kunhalankutty (2004(1) KLT 235) also supports the view that an order passed in the temporary injunction application is not revisable under section 115 of the Code of Civil Procedure. 7. However, the learned counsel for the petitioner submitted that even if the civil revision petition is not maintainable, in view of the decision of the apex court in Surya Dev Rai v. Ram Chander-Rai (2003(6) SCC 675) the power of this Court under Article 226 of the Constitution can be invoked by the petitioner and prays that this revision may be considered as one seeking reliefs under Article 226/227 of the Constitution of India. 8. It is true that amendment of the Code of Civil Procedure barring the jurisdiction under Section 115 Code of Civil Procedure in case like this will not prevent a party from invoking the provision under Article 226/227 of the Constitution of India. But at the same time, it is one thing to say that this Court has jurisdiction to entertain a writ petition but different to say that this court would exercise such extra ordinary jurisdiction in all such matters. But at the same time, it is one thing to say that this Court has jurisdiction to entertain a writ petition but different to say that this court would exercise such extra ordinary jurisdiction in all such matters. In the same decision it has been held that the exercise of power is to be done sparingly with self imposed restrictions and unless there is any substantial miscarriage of justice or there is a jurisdictional error, this Court will not be justified in interfering with the orders passed by the subordinate courts. It has also been held that while exercising power under Article 226/227 of the constitution this Court cannot sit in appeal over the judgment nor can correct an error of fact or law. The same view was expressed earlier also in the decision reported in Essen Deinki v. Rajiv Kumar (2002 8 SCC 400). Therefore, whether the petitioner is entitled to be granted any relief under Article 226/227 of the Constitution arises for consideration. 9. Admittedly, the first defendant has established the plywood factory in plaint B Schedule property which lies adjacent to the plaintiffs’ property. According to the first defendant/petitioners, the property was purchased from the first plaintiff’s husband’s brother and before establishing the factory, permission was also taken from the husband of the first plaintiff. It is also the case of the petitioner that for the purpose of starting a factory, a site plan was prepared and consent was obtained from all the statutory authorities. But according to the plaintiffs (petitioners in the I.A.) petitioner herein has constructed the building in violation of the site plan and within the prohibited distance. He has only constructed two pillars as per the site plan in plaint B Schedule property. Plaintiffs and other neighbours filed complaints before the statutory authorities – Respondents 2 to 4 before the court below. Notice was also issued to the panchayat for the illegal starting of the unit in plaint B schedule property and based on the said notice the Panchayat has made an enquiry and found that construction of the building is in violation of the approved site plan and he did not get permission or licence from the concerned District Medical Officer of Health for starting the plywood unit in the property and so the Panchayat cancelled the licence. The factory building is situated only 15 meters away from the kitchen portion of the residential building of the first plaintiff and 75 meters away from the residence of the second plaintiff. There is no protective devises for abating the nuisance and pollution from the unit. He has not constructed an compound wall in the prescribed height and has not made any protective measures to prevent the smoke from the boiler of the unit. The dust, smoke sound and foul smell from the unit will cause serious health problems to the neighbouring residents. If the function of the unit is not restrained irreparable loss and injury will be caused. According to the plaintiffs they have got a prima facie case. 10. Petitioner herein as first respondent in the application for injunction has filed his objection. According to him, the property was purchased from the first plaintiff’s husband’s brother for the purpose of staring a plywood unit and the first plaintiff’s husband died during July, 2000 and during his lifetime he has also gave written consent to establish a plywood factory. The plan was prepared with such consent and the allegation that the construction was done contrary to the site plan is false. It is admitted that it is natural when the building is finally completed there will be a slight variation and so a revised plan is usually submitted and got approved from the Panchayat. From 18.3.2003, the plywood factory started manufacturing. All the necessary formalities required under law including the lincence of the Panchayat and consent from the Kerala State Pollution Control board had been obtained by him and according to him, these is nothing illegal in the establishment of the plywood Industry. Reference was also made to an original petition filed before this Court seeking police protection for running the establishment due to the obstruction caused by a member of the Panchyat. Though the Panchayat had issued a notice as to why licence should not be cancelled that was issued under Section 233 of the Kerala Panchayat Raj Act which has no application and he has also filed objection thereto. Though the licence was cancelled petitioner herein filed O.P. 20186/2003 before this Court against the Panchayat wherein the Panchayat undertook that they will not interfere with the functioning of the unit immediately. The proceedings taken by the Panchayat is without jurisdiction. Though the licence was cancelled petitioner herein filed O.P. 20186/2003 before this Court against the Panchayat wherein the Panchayat undertook that they will not interfere with the functioning of the unit immediately. The proceedings taken by the Panchayat is without jurisdiction. Further, petitioner also took licence from the Pollution Control Board and once a consent to establish the factory is granted by the pollution Control Board, a further consent to operate the factory is superfluous. According to him, he has invested huge amount for starting the unit by availing loan from the Union Bank of India. He denied that there is any foul smell, fumes, dust effluent, etc, and prayed that the interim injunction application may be dismissed. 11. Before the trial court, Exts.A1 to A3 were marked on the side of the plaintiffs and Exts. B1 to B11 series were marked on the respondent’s side. Exts.C1 and C1(a) were also marked as court exhibits. 12. The trial court, as already referred to above, did not grant any injunction against the statutory authorities namely, respondent No. 2 onwards but granted an injunction against the first respondent in the I.A. who is the petitioner herein, restraining him from running the factory. Before granting the injunction, an advocate commissioner was appointed who submitted his report. 13. Ext.B9 is the consent given by the Pollution Control Board dated 25.7.2001. As per the decision in Jolly v. Palliupuram Grama Panchayat (2003 (2) KLT 1047) when consent for establishment is issued by the Board, it is sufficient to run the unit and a fresh consent for that purpose is not required. Ext. B9 contains 15 conditions. The trial court found that if the factory owner has violated any of the conditions in Ext.B9, it is open to the Board to take appropriate action. Ext. B9 contains 15 conditions. The trial court found that if the factory owner has violated any of the conditions in Ext.B9, it is open to the Board to take appropriate action. The specific contention raised in the interim injunction applications is that the plywood unit of the petitioner herein is constructed in violation of the rules regarding distance rule under Rule 12 of the Kerala Panchayath (Licensing of Dangerous and offensive Trade and Factories) Rules in the decision reported in Ibrahimkutty v. State of Kerala (1986 KLT 830) this court had held that though there is no statutory rule regarding the distance to be maintained, if the Government feels that the residents of the neighbourhood of a crusher unit have to be protected, the court will not exercise its jurisdiction under Articles 226 of the Constitution without being unmindful of the injustice that is likely to be caused. In the said decision, a Division Bench of this Court held as follows: “It is true that the Kerala Panchayats (licensing of Dangerous and Offensive Trades and Factories) Rules, 1963 do not prescribe that a dangerous and offensive trade should be conducted only beyond a particular distance from any residential building. The application form prescribed is part of the rules. The particulars to be furnished are thus on the basis of those rules. The rules enjoin that the licensing authority has to take into consideration several factors and then decide whether the license should be granted or not. The facts furnished in the application have necessarily to guide the authority in the exercise of its discretion. These particulars can have no greater sanctity. It cannot be said that any matter for which a separate column is provided in the application automatically enshrines a statutory prohibition. The particulars directed to be furnished by the applicant thus cannot be deemed to be any prohibitory rule based on distance. When the rules speak of no prohibitory distance, a prohibition cannot be implied from the contents of the application or the particulars to be furnished therein. We make it clear however, that it is always open to the licensing authority or the appellants or revisional authority to consider whether in a particular case, a manufacturing or industrial unit can be located within 225 feet or 100 meters of any residential building. We make it clear however, that it is always open to the licensing authority or the appellants or revisional authority to consider whether in a particular case, a manufacturing or industrial unit can be located within 225 feet or 100 meters of any residential building. Xxxxxxxxx xxxxxxxxx xxxxxxxxxx The nuisance caused by the working of a 30 H.P. engine to crush stones is a legal injury to the neighboring residents. If the Government feel that the residents in the neighborhood within 225 feet or 100 meters have to be protected, this court will not exercise its jurisdiction under Article 226 of the Constitution without being unmindful of the injustice that is likely to be caused”. 14. An advocate commissioner was appointed in the suit for ascertaining the distance from the residence of the plaintiffs to the factory building and he filed Exts. C1 and C1(a) which are the rough sketch and report respectively. The commissioner reported that the distance from the residence of plaintiffs 1 and 2 to the plywood unit of the first defendant is only 14.6 meters and 93 meters respectively. The commissioner has also reported possibility of nuisance of sound, dust and smoke from the plywood unit. He also located the residence of the plaintiffs and others and the plywood unit in Ext.C1(a) sketch. Considering the report of the advocate commissioner, the trial court found that there is possibility of nuisance from the plywood unit. Though it was contended that there is no prescribed distance in the Panchayat (licencing of Dangerous and Offensive Trades and Factories) Rules, after taking notice of the decision of this Court reported in Ibrahimkutty’s case (1986 KLT 830) it was held that the licensing authority has to take into consideration several factors and then decide as to whether the license should be granted or not. There is no dispute in this case, that the licence was granted based on the application submitted by the petitioner herein which contains the distance to be maintained from the factory. The Commissioner’s report prima facie shows that the factory is situated very near to the residence of the plaintiffs and within 100 meters distance. The possibility of causing nuisance from the plywood unit is also reported by the commissioner. The Commissioner’s report prima facie shows that the factory is situated very near to the residence of the plaintiffs and within 100 meters distance. The possibility of causing nuisance from the plywood unit is also reported by the commissioner. Hence the trial court, considerating the very close lie of the unit and other aspects of the matter, granted an interim injunction restraining the petitioner herein from running the plywood unit till the disposal of the case. 15. On appeal, the appellate court found that the commissioner has identified four residences of the other neighbours within 100 meters from the unit and noted the possibility of nuisance of sound, dust and smoke from the unit. Though a contention was raised that the plaintiffs have neither obtained permission from the court nor sanction from the Advocate General as provided under Section 91 C.P.C. and hence the relief cannot be granted, based on the decision reported in Godavari Bhai v. Cannanore Municipality (1984 KLT 1103) and Pailappan v. Sebastian (1988 (1) KLT 701) it was found that if the plaintiffs suffer special damage, the suit is maintainable without consent from Advocate General and in such cases consent in writing of the Advocate General as contemplated under Section91 of the Code of Civil Procedure is not necessary. It was also contended that the Panchayat being a statutory body courts are not supposed to give any direction to it to act in any particular manner. On the other hand, the learned counsel for the plaintiffs relied on the decision reported in Saina v. Konderi (1984 KLT 428) wherein construction of a building in violation of Municipal Buildings Rules was in issue. In the said decision, this Court held that a citizen has a right to institute a suit with view to ensure effective implementation of the Municipal Regulations even in the absence of a specific personal injury to the person suing. Reference was also made to various other decisions of this Courts and the apex court. 16. The appellate court proceeded to consider as to whether the temporary injunction under Order XXXIX Rule 1 is to be granted and whether any prima facie case is established in favour of the plaintiffs. Reference was also made to various other decisions of this Courts and the apex court. 16. The appellate court proceeded to consider as to whether the temporary injunction under Order XXXIX Rule 1 is to be granted and whether any prima facie case is established in favour of the plaintiffs. It was held that the very report and plan of the commissioner made it clear that the unit is situated 14.6 meters away from the residence of the first plaintiff and there are other four houses well within 100 meters distance from the unit which is against the rule. It also noticed that the commissioner has mentioned possibility of nuisance, sound and air pollution. Hence it was found that there is a prima facie case in favour of the plaintiffs and there is nuisance which is affecting their health on account of the functioning of the unit within the prohibited distance. Regarding balance of convenience, after referring to the decisions of the Supreme Court in M.C. Mehta v. Union of India (JT 1997(1) SC 221) and Vellur Citizens Welfare Forum v. Union of India (AIR 1996 SC 2715) the appellate court held that when health of the citizens and economic interests are to be balanced preference should be given to health aspects as it is infringement of life coming under Article 21 of the Constitution. After considering the comparative mischief, hardship and inconvenience which are likely to be caused to the petitioner/first defendant and on weighing the conflicting probabilities of injury to the plaintiffs/respondents, the appellate court held that balance of convenience is against the appellate/petitioner. 17. Regarding irreparable injury, it was held that if the fumes, dust and sound pollution are allowed to operate without regard to the permissible limits set by law; definitely it will cause irreparable injury to the plaintiffs and hence irreparable injury was also found in their favour. After analyzing the entire evidence in the case and considering circumstances, the appellate court upheld the decision of the trial court and dismissed the appeal. 18. In this revision, the main contention raised by the petitioner is that the suit is not maintainable as it is hit by Section 250 of the Kerala Panchayat Raj Act and barred under section 91 of the Code of Civil Procedure. 18. In this revision, the main contention raised by the petitioner is that the suit is not maintainable as it is hit by Section 250 of the Kerala Panchayat Raj Act and barred under section 91 of the Code of Civil Procedure. Incidentally, it may be stated here that the petitioner has not even filed a written statement and yet to raise preliminary objection regarding the maintainability of the suit. Section 250 of the Kerala Panchayat Raj Act reads as follows: “Protection of acts done in good faith— No suit, prosecution or other legal proceedings shall lie against the President, Vice-President, any member, Secretary, any officer or employee of a Panchayat for anything which is in good faith done or purported or intended to be done in pursuance of this Act or any rule or bye-law made thereunder”. 19. From the above provision, it can be seen that there is no need for instituting any suit against the petitioner herein. It only saves the officers from any legal proceedings when they have acted in good faith. It is settled principle that ouster of jurisdiction of civil court cannot easily be presumed unless there is any express or implied provision to that effect in the Act. Section 249 itself indicates that a suit or other civil proceedings against the Panchayat or against the President or vice-president or other officers acting under the direction of the Panchayat or any member or employee thereof for anything done or purporting to be done under this Act in its or his official capacity can be instituted after the expiration of one month after notice in writing stating the cause of action, name and place of abode of the intending plaintiff and the nature of the relief which he claims etc. and the notice referred to when it is intended for the Panchayat shall be addressed to the Secretary. This is similar to Section 80 of the Code of Civil Procedure. Therefore, Section 249 itself would clearly show that a suit is not barred but only obliges a notice to be issued before institution of the suit. The plaintiffs have issued such a notice and instituted the suit. Therefore, the argument that the suit is barred under Section 250 of Kerala Panchayat Raj Act, Prima facie, is not sustainable. Therefore, Section 249 itself would clearly show that a suit is not barred but only obliges a notice to be issued before institution of the suit. The plaintiffs have issued such a notice and instituted the suit. Therefore, the argument that the suit is barred under Section 250 of Kerala Panchayat Raj Act, Prima facie, is not sustainable. Further, the plaintiffs had alleged that the working of the factory causing fumes, dust and sound pollution causing serious health hazards and the factory building itself is constructed contrary to the conditions of the licence regarding distance. In Mariamma v. Thomas (2003 (1) KLT 245) a learned Judge of this Court has considered the scope of Section 91(1) C.P.C. and held that a single individual can file a simple suit for permanent prohibitory injunction against construction of a building in violation of Rules and such suit will not be one coming under Section 91 (1) of the Code of Civil Procedure. Therefore, the argument that no permission is sought for under Section 91 of the Code of Civil Procedure and the plaintiff has to approach the authorities and cannot institute a suit prima facie is not sustainable. As a matter of fact, the trial court has clearly found that before institution of the suit, the plaintiff had approached the authorities and the licence was cancelled and the matter was pending before this Court later in Writ petition at the instance of the petitioner herein. At any rate, on the averments made in the plaint and the relief sought for, it cannot be said prima facie that the suit is not maintainable. Rightly, the trial court has refused an injunction against the statutory authorities. As regards a private individual running a factory is a civil right and when there is evidence of injuries affection by violating the distance rules causing pollution etc. it cannot be said that the remedy by way of a civil suit will not lie. 20. However, learned counsel for the petitioner contended that there is no prima facie evidence of any pollution. But the trial court as well as the appellate court has heavily relied on the commissioner’s report and the possibility of causing nuisance to form a prima facie view to grant injunction. 20. However, learned counsel for the petitioner contended that there is no prima facie evidence of any pollution. But the trial court as well as the appellate court has heavily relied on the commissioner’s report and the possibility of causing nuisance to form a prima facie view to grant injunction. In exercise of the powers under Article 226/227 of the Constitution of India it cannot be said that the prima facie view taken by the court below is in excess of the jurisdiction vested in it by law. It cannot be said that there is any substantial miscarriage of justice to be remedied at this stage in a writ jurisdiction by this Court. No interference is therefore warranted in this proceedings. 21. However, it has to be observed that the interim injunction is granted till the disposal of the suit. The specific allegation is that no compound wall is constructed and no nuisance is abated. Though the commissioner’s report relied on by the court below says possibility of nuisance being caused, whether the working of the factory is against the environment laws, what is the measure of such pollution and whether it is in permissible limits are matters to be decided on expert opinion by the Pollution Control Board. Therefore, at the instance of the petitioner herein, if an application is made for inspection of the factory by the Engineers of the Pollution Control Board for measuring the pollution, if any, caused and the remedial measures to be taken at the instance of the petitioner, the court below shall allow such petition and issue appropriate directions to the Pollution Control Board for an inspection to be conducted for which purpose petitioner shall be allowed to conduct running test with due notice to all the parties concerned. Based on the report of the expert commissioner of the Pollution Control Board and evidence if any, after examining the engineer concerned, it will be open to the petitioner to seek appropriate modification of the injunction order whereupon untrammeled by the observations made in the appellate court judgment or in this judgment, the trial court shall consider such application for modification and pass appropriate orders. The trial court shall be free to pass necessary orders. The civil revision petition is disposed of as above.