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2014 DIGILAW 335 (JK)

Junaid Ahmad Bhat v. Chairman BOCA

2014-08-08

B.L.BHAT

body2014
JUDGMENT : Bansi Lal Bhat, J.:- 1. This writ petition is directed against the order dated 26.02.2014 passed by the 1st Appellate Court of Additional District Judge, Srinagar, in Civil Miscellaneous Appeal filed by the respondents 7 to 10 against the order dated 18th November, 2013, of the learned Municipal Magistrate, Srinagar, in application for temporary injunction forming part of the civil suit titled Junaid Ahmad Bhat v. Chairman (Commissioner, SMC) and others, in terms whereof learned Additional District Judge, Srinagar, set aside the order of temporary injunction restraining the respondents 7 to 10 from operating and running the diesel generator installed on spot. The petitioner has invoked the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India read with Sections 103 and 104 of the Constitution of Jammu and Kashmir for issuance of a writ of certiorari for quashing the order dated 26.02.2014 passed by the learned Additional District Judge, Srinagar. He has also sought writ of mandamus directing the respondents 7 to 10 to stop forthwith the operation of the diesel generator set installed by them for manufacture of Naswar in their factory at Jamalatta, Srinagar. The factual matrix of the case may briefly be adverted to. Petitioner filed a suit before the trial court praying for restraining respondents 7 to 10 from operating and running the diesel generator installed by the said respondents in their factory, on the ground that diesel generator installed in front of the house of the petitioner was causing nuisance to the petitioner and others living in the neighbourhood. He also prayed that the respondents 1 to 4 be directed to remove the said heavy diesel generator. Alongside, the petitioner filed a motion for temporary injunction. On consideration of the matter, the trial court in terms of order dated 20.09.2012, granted temporary injunction restraining the respondents 7 to 10 from operating the heavy diesel generator in violation of the rules. After hearing both the parties, the ex parte interim order dated 20.09.2012 was made absolute in terms of order dated 18.11.2013. Feeling aggrieved of the interim order, the respondents 7 to 10 preferred an appeal against the same before the learned Additional District Judge, Srinagar, who, after considering the matter, passed the impugned order dated 26.02.2014 allowing the appeal and setting aside the order dated 18.11.2013 passed by the learned Municipal Magistrate, Srinagar. Feeling aggrieved of the interim order, the respondents 7 to 10 preferred an appeal against the same before the learned Additional District Judge, Srinagar, who, after considering the matter, passed the impugned order dated 26.02.2014 allowing the appeal and setting aside the order dated 18.11.2013 passed by the learned Municipal Magistrate, Srinagar. The impugned order has been assailed on the grounds summarized hereunder: (i) The respondents 7 to 10 had no right to install heavy diesel generator set in front of the house of the petitioner, operate the same and cause discomfort and nuisance to the petitioner; (ii) The noise generated by operation of the heavy diesel generator in front of the house of the petitioner has resulted in making life of the petitioner and his family painful; (iii) The impugned order has been passed in a mechanical and arbitrary manner without taking into consideration that the noise pollution caused by operation of the heavy diesel generator adversely affected the health, liberty and life of the petitioner and his family; (iv) The impugned order has been passed without taking into consideration pleadings of the parties court has also said that if the injury is continuous, the court will not refuse an injunction because actual damage arising from it is slight. 2. Respondents 7 to 9 have filed detailed reply and have contested the averments made in the writ petition on the grounds summarized hereunder: (i) The writ petition is not maintainable as no appeal or revision lies against the impugned order passed by the 1st Appellate Court under Order XLIII Rule 1(r) of Code of Civil Procedure; (ii) The petitioner has suppressed material facts; (iii) The petitioner has tried to improve upon the pleadings before' the trial court which did not demonstrate any actionable legal right; (iv) The contesting respondents have installed Mahindra Powerol 5 KV Diesel Genset, which is state of the art Gensets meeting and conforming to all the National and International stringent statutory requirements under law including those under the Environment (Protection) Act, 1986; (v) The expertise and jurisdiction to decide the questions relating to the fact as to whether or not a diesel Genset is generating noise beyond the prescribed limits vests with the State Pollution Control Board who deals with the complaints of noise pollution. A civil suit or a revision is not maintainable in this regard; (vi) The petitioner's father has himself installed Honda Make 2800 Kerosene run generator which is emitting deafening noise far beyond the prescribed limits. Thus the petitioner is guilty of inequity while claiming an equitable right. 3. With the consent of the learned counsel for the contesting parties, this writ petition is taken up for final disposal. 4. Before proceeding further in the matter, it would be appropriate to have a look on the issue with regard to maintainability of the writ petition under Articles 226 and 227 of the Constitution of India read the Sections 103 and 104 of the Constitution of Jammu & Kashmir State. It is well settled that writ jurisdiction under Article 226 of the Constitution of India is extraordinary in nature and the same is not meant for declaring the private rights of the parties. The remedy available under Article 226 is not available unless there is violation of some statutory duty on the part of the statutory authority. A writ petition is a remedy in public law which can be filed by any person but the main respondent should either be the State, Government, governmental functionaries, or its instrumentalities/agencies within the meaning of Article 12 of the Constitution. Private individuals cannot be equated with State or its instrumentalities/functionaries. All the respondents in the writ petition cannot be private individuals. However, private individuals acting in collusion with the State can be respondents in a writ petition. The person against whom writ can be issued must have some statutory or public duty to perform. Power under Article 226 is exercised at the instance of persons or citizens for vindication of their constitutional or statutory rights. The relief under Article 226 can be claimed ex debito justitiae or as a matter of right when there is infringement of fundamental rights. 5. However, a petition filed under Article 227, stricto-sensu, is not a writ petition. The nature of exercise of power under Article 227 stands on substantially different footing. Jurisdiction under Article 227 is neither original nor appellate. Article 227 vests jurisdiction in the High Court both for administrative control and judicial superintendence over the courts and tribunals subordinate to it. 5. However, a petition filed under Article 227, stricto-sensu, is not a writ petition. The nature of exercise of power under Article 227 stands on substantially different footing. Jurisdiction under Article 227 is neither original nor appellate. Article 227 vests jurisdiction in the High Court both for administrative control and judicial superintendence over the courts and tribunals subordinate to it. While in its jurisdiction under Article 226, the High Court has power to annul or quash an order or proceedings, jurisdiction under Article 227 can be exercised to substitute the order impugned by an order which the inferior tribunal should have passed. This is apart from annulling the proceedings or quashing of the order impugned. While power under Article 226 is exercised when a party is affected, the power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. Thus the powers conferred under Articles 226 and 227 of Constitution of India are distinct and operate in different fields. Interference by the High Court under Article 227 is to keep the subordinate courts within the bounds of their jurisdiction. However, mere errors of fact or of law cannot be corrected by taking recourse to writ of certiorari or exercise of supervisory jurisdiction unless such error is manifest or apparent on the face of the proceedings and a gross failure of justice has occasioned thereby. Such powers are to be exercised sparingly and in appropriate cases where the judicial conscience of the court dictates it to act to bring failure of justice to halt. Caution and circumspection is to be exercised when such jurisdiction is sought to be invoked during the pendency of any suit/proceedings before a subordinate court and the error is capable of being corrected at the conclusion of proceedings though calling for correction. I am fortified in this view by a judgment of the apex Court in a case titled Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 . I am fortified in this view by a judgment of the apex Court in a case titled Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 . The Hon'ble apex Court after analyzing various decisions rendered by it, formulated the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution:- "On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, within the bounds of their authority'. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, within the bounds of their authority'. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality." 6. Admittedly, in view of the amendment to Section 115 of Code of Civil Procedure, no revision lies against the impugned order passed by the learned District Judge in appeal. However, the remedy by way of revision being not available would not stand in the way of invoking jurisdiction under Article 227 of the Constitution, if the impugned order suffers from error on the face of record, i.e., the order is in utter disregard of the provisions of law and has occasioned gross failure of justice. The power of superintendence vested in this Court under Article 227 cannot be curtailed by any statute. Invoking of such power would be justified in a case of patent perversity in the order of the subordinate court. The power of superintendence vested in this Court under Article 227 cannot be curtailed by any statute. Invoking of such power would be justified in a case of patent perversity in the order of the subordinate court. Curtailing of scope of Section 115 of Code of Civil Procedure in terms of the amending Act of 2009, in any case, does not result in expanding High Courts power of superintendence. In exercise of its jurisdiction under Article 227 of the Constitution of India, this Court has to follow the regime of law notwithstanding the curtailment or barring of jurisdiction under Section 115 of CPC. 7. The question which arises for determination and consideration is as to whether the impugned order is perverse and suffers from grave error and has occasioned a failure of justice. The case of the petitioner is that he complained before the trial court that the heavy diesel generator installed by respondents 7 to 9 in front of his house was causing great nuisance and disturbance in the area. He further complained that the operation of the heavy diesel generator which had replaced the small generator operated by the private respondents previously for running their factory for manufacturing of Naswar was causing tremors in the house. Resultantly the inmates of the house including his father, who was a heart patient, were having sleepless nights. The petitioner appears to have also filed a representation before the Commissioner Srinagar Municipal Corporation in this regard. The official respondents pleaded in their written statement that the private respondents were running business of manufacturing Naswar and have installed a heavy generator for manufacturing of Naswar which was creating nuisance in the area in addition to pollution. Private respondents pleaded in their written statement that they have installed a Mahindra Powerol 5 KV Diesel Genset around 13 feet away from the wall of the house of the petitioner's father and uncles and the said generator meets the stringent global as well as national specifications and requirements prescribed by law. It is pleaded that the maximum prescribed noise limit in case of diesel generator from 1 KV to 1000 KV is 75 decibel (dB) at one meter distance. The actual noise emission of Mahindra Powerol 5 KV Diesel Genset as certified by duly recognized statutory agencies, including the Fluid Control Research Institute, is 70 dB, which is much below the maximum prescribed permissible limit. The actual noise emission of Mahindra Powerol 5 KV Diesel Genset as certified by duly recognized statutory agencies, including the Fluid Control Research Institute, is 70 dB, which is much below the maximum prescribed permissible limit. The manufacturer of Mahindra Generators is said to have obtained the Conformity of Production Verification Certificate as mandatory under law. Thus, it was pleaded that the petitioner had no cause of action. 8. The learned Municipal Magistrate passed an ex parte interim injunction order dated 20.09.2013 restraining the private respondents from operating the heavy diesel generator in front of the house of the petitioner. The ex parte interim order was subsequently made absolute in terms of order dated 18.11.2013, after considering the objections filed by the respondents. The learned Municipal Magistrate found that the respondents had admitted the installation of diesel generator for operation of manufacturing unit of Naswar. However, the court found that the diesel generator has been installed to run the manufacturing unit in residential area and private respondents were unable to lay before the court any valid permission for running of the unit in a residential area. He noticed that the official respondents had admitted that the installation and operation of heavy diesel generator was a cause of nuisance and creating pollution in the area. Having found a prima facie case made out by the petitioner for grant of interim injunction, the learned trial Court was of the view that no conclusive finding could be recorded in regard to causing of nuisance and pollution by operation of diesel generator by private respondents. However, in the opinion of the trial court, prima facie inference could be drawn that because of ill-effects caused by noise and air pollution and the vibrations caused during operation of the diesel generator, the petitioner's rights were violated. The learned trial court was of the opinion that the considerations regulating grant of temporary injunction having been satisfied, the interim injunction granted in ex parte deserved to be made absolute. 9. On appeal taken by the private respondents 7 to 9 before the learned District Judge, order of temporary injunction passed by the Municipal Magistrate was set aside. The appellate court was of the opinion that there was not an iota of material placed on record to arrive at the conclusion that the operation of the diesel generator by private respondents would cause nuisance. The appellate court was of the opinion that there was not an iota of material placed on record to arrive at the conclusion that the operation of the diesel generator by private respondents would cause nuisance. The appellate court noticed that no technical report had been placed on record to substantiate the theory of nuisance and that the distance between the two houses had not been indicated in the pleadings. The appellate court also took note of the fact that the nature and extent of apprehended injury likely to be caused by the nuisance had not been disclosed in the pleadings. He found that the temporary injunction order passed by the trial court was perverse. 10. Protection and improvement of human environment is a global concern. In keeping with the decisions taken at the United Nations Conference on the Human Environment in which India participated, the Environment (Protection) Act, 1986 came to be passed by the Parliament to implement the decisions aforesaid and to prevent the hazards to human beings, other living creatures, plants and property. The Central Government made the rules styled as "Noise Pollution (Regulation and Control) Rules, 2000" under the aforesaid Act for regulation and control of noise producing and generating sources including the generator sets. Rule 3 of the aforesaid rules prescribes the ambient air quality standards in respect of noise for different areas/zones in terms of schedule annexed to the Rules. Responsibility as to enforcement of noise pollution control measures lies on the prescribed authority. Penalty is prescribed for contravention of regulations. The Rules envisage filing of a complaint before the prescribed authority which is empowered to prohibit annoyance, discontent, discomfort or injury or reason thereof to the public or to any person who lives or occupies property in the vicinity. 11. In the instant case, the plea taken by private respondents is that they installed Mahindra Powerol 5 KV diesel Genset around 13 feet away from wall of house of the petitioner's father and uncles and the said generator meets the specification and requirements prescribed by law. It is not disputed that maximum prescribed noise limit in case of type of diesel generator installed by private respondents is 75 dB at one meter distance. It is not disputed that maximum prescribed noise limit in case of type of diesel generator installed by private respondents is 75 dB at one meter distance. The petitioner has brought nothing on record to rebut the certificate issued by the Fluid Control Research Institute that the noise emission of the diesel generator installed by private respondents is 70 dB, thus falling well below the prescribed noise limit. Private respondents' plea that the conformity of Protection Verification Certificate as made mandatory under law, too, has not been rebutted by the petitioner. Thus, it was incumbent upon the petitioner to have approached the State Pollution Control Board which is the prescribed and the expert authority having jurisdiction in the matter. Within the ambit and scope of the petition under Article 227 of the Constitution of India the petitioner cannot be heard to say what has not been pleaded before the trial court, pleadings alone being the material to ascertain whether the courts below have passed the orders within the bounds of law. 12. During the course of arguments, it surfaced that running of manufacturing unit of Naswar within the limits of residential area was a permissible activity. Even petitioner's family had been running Naswar manufacturing unit operated by a generator. Therefore, the very edifice on which the learned Municipal Magistrate based his satisfaction to arrive at a conclusion in regard to existence of a prima-facie case in favour of the petitioner loses ground. The assumptions and inferences drawn by the trial court were not justified and the order passed by it could not be supported. 13. Viewed in the above perspective, it was not permissible for the learned Municipal Magistrate to draw an inference that the operation of the diesel generator by private respondents was in violation of rights of the petitioner due to its ill-effects caused by noise, Air Pollution and/or vibrations created by its operation. The learned appellate court has rightly observed that the trial court has exercised its jurisdiction arbitrarily ignoring the settled principles of law regulating grant of temporary injunction. I find no perversity in the impugned order passed by the learned appellate Court which has exercised its jurisdiction within the bounds of law. 14. In the aforementioned backdrop, this writ petition being devoid of any force, is dismissed alongwith the connected CMPs.