IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SIXTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY SEOCND APPEAL No.939 of 2009 Between: J.Subba Rao. … Petitioner And Tellakula Rama Krishna (Died) and 9 others. … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.939 of 2009 ORDER:- The unsuccessful defendant in both the courts below filed this second appeal against the judgment of the Senior Civil Judge, Amalapuram, dated 27.04.2009 passed in A.S.No.29 of 2001, in dismissing the appeal confirming the decree and judgment of the II Additional Junior Civil Judge, Amalapuram dated 18.01.2001 decreeing the suit of the plaintiffs in O.S.No.258 of 1998 filed for mandatory injunction restraining the defendant/appellant herein, from running Srinivasa Flour and Oil Mill, Mosalapalli. The respondents/plaintiffs in the above suit, who are Rajakas and Nayi Brahmins by caste, pleaded that the suit mill-Srinivasa Flour and Oil Mill, of the appellant/defendant is located amidst of the plaintiffs’ residential houses. Since the profession of the plaintiffs involved much physical strain, they need health undisturbed and peaceful atmosphere to have sound sleep during nighttime. The appellant, who got installed a suit mill behind the back of the respondents, despite their protest and other representations made to the Gram Panchayat and concerned authorities, failed to evoke any response. By running of the suit mill, respondents are suffering not only with sleepless nights, but also ill health, breathing problem, which also causes air pollution. Since the suit mill is causing injury to their health, damage to their property and the walls of the respondents’ houses were vibrated, the water in the open area has become unfit for human consumption, they filed the above suit for mandatory injunction. Apart from the suit in O.S.No.258 of 1998, another suit in O.S.No.218 of 1998 was also filed by one Tellakula Pallayya for the very same relief. The appellant/defendant filed the written statement, contending that he obtained licence legally from the Gram Panchayat, which was granted after approval by the Health and Factories Authorities. At the time of granting the licence or subsequent thereto, nobody has objected about the running of the rice mill, which does not cause any sound or dust or air pollution nor effect the rights of the plaintiffs or family members as alleged. Since the establishment of the suit mill is not objectionable in the locality and nobody objected, the necessary licences were obtained by the appellant. The existing machinery in the suit mill is there from 1980 onwards and the suit was filed by the plaintiffs to settle the political factions and the same cannot be entertained. On the above pleadings, the following issues were settled by the trial court; 1. Whether the Mill of the defendant is creating nuisance much less actionable one to the plaintiffs? 2. Whether the plaintiffs have cause of action? 3. Whether the plaintiffs are entitled for permanent injunction as prayed for? 4. To what relief? The above suit along with O.S.No.218 of 1998 was clubbed together and common evidence has been let in O.S.No.258 of 1998. To substantiate the plea of the plaintiffs, P.Ws.1 to 8 were examined on their behalf and Exs.A1 to A7 were marked. On behalf of the defendant, D.Ws.1 to 6 were examined and Exs.B1 to B8 were marked. The Advocate Commissioner, who was appointed, was examined as C.W.1 and Exs.C1 to C3 were marked. The trial court after evaluating the oral and documentary evidence decreed the suits granting permanent injunction restraining the appellant/defendant from running Srinivasa Flour and Oil Mill with costs. Aggrieved by the same, the appellant/defendant carried the matter in two appeals i.e., A.S.No.29 of 2001 against the decree and judgment in O.S.No.258 of 1998 and A.S.No.30 of 2001 against the decree and judgment in O.S.No.218 of 1998. The appellate court in its common judgment observed that P.W.1 who is the 6th plaintiff in the suit and all the plaintiffs are residents in the vicinity of the mill and the plan filed along with the suit depicting residential houses are nearby to the suit locality. Admittedly, the defendants started the mill in or about 1980, subsequently, increased the capacity of horse power. As per the evidence of P.W.1, the husk, dust and sound coming out from the mill, causing pollution to air, water and sound, which is unbearable to reside in that locality. P.W.2 also corroborated the above evidence, further stating that one year back, defendant converted his mill to highest capacity and the sound amenating from the mill is unbearable causing noise pollution. P.W.3, who is the 5th plaintiff also deposed that due to the running of the rice mill, the air and water have been polluted and the well situated near to the residential houses was also polluted with husk and the colour of water was changed and bad smell is coming out from that water, which is unfit for human consumption. Similarly, P.Ws.4 and 5 who are the residents also deposed in the same manner. P.Ws.6 to 8 who are the third parties and their evidence also goes to show that there is pollution by running the mill and the mill is running day and night causing noise pollution and from the date of conversion of the mill, the intensity of the sound is increased rapidly which is unbearable for the neighbours to reside. D.W.1 is the defendant who deposed in the lines of the stand taken by him stating that he started the rice mill after obtaining necessary licence and as per the licence he is running the mill from 8 a.m. to 5 p.m. and there is no possibility of causing unbearable sound and air pollution and also water pollution. The suit was instituted due to the political factions. D.W.6 is the Health Supervisor in the DM & HO Office, Kakinada and justified that after having thorough enquiry, the Medical and Health Department granted licence, but admitted that there is no periodical inspection by the health authorities and after giving licence, the defendant is running the mill. An advocate commissioner was got appointed in I.A.No.692 of 1998 in O.S.No.258 of 1998 who inspected the suit locality and also filed reports Exs.C1 and C2, which clearly establishes that the sound amenating from the mill is becoming unbearable and there is no possibility of hearing conversation between two persons while standing in the mill and also outside and the sound can be heard at a distance of half kilometer from the mill. Since D.W.6 also deposed that after issuance of the licence, there is no periodical checking to the mill and no such evidence is let in by the defendant that there is periodical checking by the statutory authorities for running the rice mill and also for increasing the capacity of the rice mill. The appellate court gave a finding that the appellant after starting the industry, it is now causing sound pollution, air pollution and also water pollution and the sound amenated from the mill has became unbearable and it is an actionable nuisance for which the plaintiff is entitled to curb the same. Since the defendant is causing continuous nuisance to the plaintiffs and also other neighbouring residents, as such the civil court has got every right to grant permanent injunction under the Specific Relief Act, 1963 and accordingly dismissed the appeal. The only contention that was raised by the learned counsel for the appellant is that the rice mill was established after obtaining necessary licence from the Gram Panchayat and also from the Director of Medical and Health Officer, Kakinada in the year 1979 under Ex.B2, and that D.W.6 also deposed that if there are any health hazards to the neighbours, the Director of Medical & Health Officer would not grant any permission for running the rice mill, but those aspects were not taken into consideration by the Courts below. Further in the year 1996 Government issued G.O.Ms.No.70, dated 07.03.1996-Ex.B7 to the effect that obtaining of ‘no objection’ certificate is dispensed with and, therefore, there is no necessity to obtain any such permission for running the units with the capacity of 0.30 HP, and in that view of the matter, when the appellant obtained necessary licence, his right to livelihood cannot be impaired by granting permanent injunction. I do not see any merit in the contention advanced by the learned counsel for the appellant for the reason that admittedly, even as per the evidence of D.W.6 after granting the licence, the Director of Medical and Health Officer, has not periodically inspected the rice mill to know the time of renewal and simply renewed, without any such inspection. When the plaintiffs, who are the residents of the locality clinchingly establish that the capacity of the mill in dispute has been increased subsequently, resulting in unbearable sound pollution due to which they are spending sleepless nights, which facts has not been rebutted by the appellant. In view of the same, since it is an actionable nuisance, for which the plaintiffs are entitled to prevent the same by way of an injunction, the Courts below after taking into the right of the plaintiffs to have a peaceful living, rightly decreed the suit granting injunction restraining the defendants from disturbing the peaceful environment and living of the plaintiffs. The concurrent findings of fact arrived by the courts below, on appreciation of evidence adduced by the parties in the absence of any perversity in appreciation of evidence, do not give raise to any question of law much less substantial question of law to be considered in the second appeal. Second appeal fails and is accordingly dismissed. No costs. __________________ A.GOPAL REDDY, J 26th February 2010 lmv