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2017 DIGILAW 607 (KER)

ANILKUMAR v. N. RAVI

2017-03-29

A.HARIPRASAD

body2017
JUDGMENT : Appellant is the defendant in OS No.76 of 2011 before the Court of Munsiff, Adoor. The suit is one for permanent prohibitory injunction restraining the defendant from running a cement block manufacturing unit in plaint 'B' schedule property with hydraulic machines. In the alternative, it was prayed that a permanent prohibitory injunction restraining the defendant from using any machinery in his industrial unit in 'B' schedule, of a capacity exceeding 4.5 HP, and also to direct him to relocate such machineries to a distance of 15(fifteen) metres form plaint 'A' schedule property. The trial court after taking evidence and considering the contentions on both sides, dismissed the suit. Dissatisfied with the judgment and decree, the plaintiff approached the court of the District Judge, Pathanamthitta with AS 83 of 2014. The lower appellate court after considering the rival contentions and evidence on record, decreed the suit in following terms. 2. "In the result, the appeal is allowed in part and a decree of permanent prohibitory injunction is passed in favour of the plaintiffs/appellants restraining the defendant from running a cement hollow bricks and solid block manufacturing industrial unit in plaint 'B' schedule property with hydraulic machines within a radius of 15(fifteen) meters of the residential building of the plaintiff situated in plaint 'A' schedule property. However, I make it clear that this decree will not be a bar for running a cement hollow bricks and solid block manufacturing industrial unit in plaint 'B' schedule 15 (fifteen) meter away from the residential building of the plaintiffs. Parties are directed to bear with their respective costs." 3. Heard the learned counsel for the appellant and the respondents. Learned counsel for the appellant submitted that the decree passed by lower appellate court is legally unsustainable and the lower appellate court failed to take note of the fact that Pollution Control Board, local authority etc., who are necessary parties to the suit were not impleaded and for that reason alone, the suit was incompetent. It was also contended that the appellant started functioning the industry in 1998. The respondents purchased the plaint 'A' schedule property in the year 2001. It is the contention of the learned counsel for the appellant that the plaintiff cannot be heard to say that there is nuisance as he purchased a property adjacent to a running industry. It was also contended that the appellant started functioning the industry in 1998. The respondents purchased the plaint 'A' schedule property in the year 2001. It is the contention of the learned counsel for the appellant that the plaintiff cannot be heard to say that there is nuisance as he purchased a property adjacent to a running industry. Opposing this contention, the learned counsel for the respondents submitted that till 2009 the industry was functioned manually and no power was used. In 2009 they installed an electric motor and hydraulic machinery which causes unbearable sound, dust and vibration, causing the life of the respondents miserable in the house of plaint 'A' schedule property. 4. The lower appellate court considering the contentions raised by the parties, observed the following:- "I have already discussed that form Ext. C1 series commission report and sketch, it is clear that the disputed industrial unit is situated just 4 meter away from the residential house of the appellants/plaintiffs. From the information received from Kerala State Pollution Control Board dated 29-11-2012 i.e., Ext. A6 also can be seen that the distance between the residential house of the plaintiffs/appellants and the disputed manufacturing unit is only four meter. That means, admittedly within a radius of 4 meter of the residential building of the appellants/plaintiffs a manufacturing unit of a hollow bricks having 8.5 HP is running. Now the contention of the appellants/plaintiffs is that as a result of the running of the said manufacturing unit appellants and their family members are suffering much nuisance and inconvenience and it is an actionable nuisance. The materials on record also discloses that even though the manufacturing unit was commenced in plaint 'B' schedule during 1998, up to 2009, no hydraulic machine was installed there and the horse power used was only up to 5.5 HP. From the evidence of DW1, defendant and from other documentary evidence, it is clear that during the end of 2009 a hydraulic machine was installed in the disputed industrial unit and the horse power now being used is 8.5 HP. From Ext.C1(a) commission report, it is clear that at the time of functioning of the hydraulic machine large sound and vibration would occur and it would cause inconvenience to the inmates of the residential building of the plaintiff, That means from the evidence of PW2, Advocate commissioner and from Ext. From Ext.C1(a) commission report, it is clear that at the time of functioning of the hydraulic machine large sound and vibration would occur and it would cause inconvenience to the inmates of the residential building of the plaintiff, That means from the evidence of PW2, Advocate commissioner and from Ext. C1 series commission report and sketch it can be seen that the functioning of the disputed brick manufacturing unit in plaint 'B' schedule would cause nuisance and disturbance to the life of plaintiffs and their family members in plaint 'A' schedule. The nuisance experiencing is spoken by PW1 and PW3 also. In the impugned judgment in para 14, the learned Munsiff found that plaintiff has not taken any steps to get expert opinion regarding the alleged pollution and disturbance. The lower court also found that since the Advocate Commissioner is not an expert to analyse the pollution on the basis of Ext. C1, Commission report alone it is not possible to arrive a conclusion that functioning of the industrial unit in plaint 'B' schedule property would cause disturbance and nuisance as alleged by the plaintiffs. The lower court also found that the evidence of PW3 has to be treated as interested testimony since PW1 plaintiff was examined as a witness in a civil suit instituted by PW3. It is true that PW2, Advocate commissioner is not an expert in order to analyse the nature of pollution alleged in this case. But the same time from the evidence of PW2, Advocate commissioner and from Ext.C1(a) report, it is clear that the disputed manufacturing unit is functioning just 4 metre away from the residential house of the plaintiffs. I have already discussed that the said aspect can be seen from Ext.A6 information received from the Pollution Control Board also. At this juncture, it is very pertinent to go through circular N0.PCB/T4/115/97 dated 20-07-2011 issued by the Kerala State Pollution Control Board. In the said circular, the distance to be maintained for the purpose of starting various industries like plywood industries, hollow brick units, laterite quarry, pig farm are mentioned. Serial No.2 in the said circular is in respect of hollow block units, furniture, saw mill etc. From the said circular, it is clear that for the purpose of starting a hollow block unit, minimum distance to be kept from residence is 25 metre. Serial No.2 in the said circular is in respect of hollow block units, furniture, saw mill etc. From the said circular, it is clear that for the purpose of starting a hollow block unit, minimum distance to be kept from residence is 25 metre. It is true that from the said circular, it can be seen that the criteria mentioned in the said circular is applicable only to new units. In the case at hand, the disputed unit have been functioning prior to 20-07-2011. From the impugned judgment passed by the lower court it can be seen that the lower court had not relied the said circular since the same was come into force with effect from 20-07- 2011. Even though, the said circular issued by the Pollution Control Board is not squarely applicable in the case at hand the said circular can be taken into account in order to ascertain whether any nuisance or inconvenience would occur if a hollow block unit manufacturing industry is functioning adjacent to a residential house. Indisputably on the basis of the above referred circular an industrial unit like the disputed hollow brick unit cannot be started within a radius of 25 metre of a residential house form 20th July 2011 onwards. Such a stipulation is incorporated by the Pollution Control Board in order to avoid nuisance and difficulties to the inmates of the adjacent residential houses. That means, from the said guidelines it can safely be inferred that if an industry of hollow bricks is running adjacent to a residential house it would definitely cause nuisance to the adjacent people who resided within a radius of 25 metres. In the case at hand, I have already discussed that the disputed industry is situated just 4 metre away from the residential house of the plaintiffs. It is also very pertinent to note that the hydraulic machine was installed during the end of 2009. In such a situation the case put forward by the plaintiffs that the functioning of the cement hollow brick block manufacturing unit in plaint 'B' schedule property with hydraulic machine amount to an actionable nuisance is having much substance. 5. Lower appellate court, relying on A.P. Pollution Control Board Vs. Prof. In such a situation the case put forward by the plaintiffs that the functioning of the cement hollow brick block manufacturing unit in plaint 'B' schedule property with hydraulic machine amount to an actionable nuisance is having much substance. 5. Lower appellate court, relying on A.P. Pollution Control Board Vs. Prof. M.V. Nayudu (Retd.) (AIR 1999 Supreme Court 812), held a proposition that if an industry is to be started, the burden is upon the industrialist to show that it would not cause any environmental pollution. 6. In answer to this contention, learned counsel for the appellant submitted that, that was a case relating to a hazardous industry wherein the Pollution Control Board was made a party in the proceedings. However, fact remains that the plaintiff by adducing oral evidence and by taking out commission has established that residence in a house situated 4 (four) metres away from hydraulic machinery making huge sound is very uncomfortable. The facts found by the lower appellate court based on evidence cannot be challenged in this second appeal. 7. Learned appellate court judge has decreed only a part of the prayer in the plaint. What is directed is that the appellant should shift the hydraulic machines to a place 15 (fifteen) metres away from the residential building of the respondents situated in plaint 'A' schedule property. It is submitted by the learned counsel for the respondents that though the extent of plaint 'B' schedule shown is only 20 cents, the respondents came to know later that they are having large extent of property, which is a fact disputed by the appellant. However the only direction by the lower appellate court is to shift the nuisance creating machines to a distance of 15(fifteen) metres away from the plaint scheduled property. It is submitted that it can be done conveniently. 8. Learned counsel for the appellant submitted that in the guise of shifting the hydraulic machines, the respondents shall not be heard to say that the entire unit should be shifted. The submission appears to be reasonable. What is to be shifted is the nuisance causing machineries and articles. This fact is clear from the lower appellate court's judgment. After hearing the counsel on both sides and on perusal of the impugned judgment, I find no substantial question of law. Therefore the appeal is dismissed.