RSA No. 4359 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4359 of 2006 Date of Decision: 08.01.2010 Pawan Kumar Sharma aged 54 years son of Uttam Chand, r/o Bhawani Nagar, Bharwain Road, Hoshiarpur. ... Appellant Versus 1. Brahmanand Kahol son of Milkhi Ram son of Tulsi Ram, r/o 105, Bhawani Nagar, Bharwain Road, Hoshiarpur. 2. Municipal Council, Hoshiarpur through its Executive Officer. 3. Environment Engineer, Punjab Pollution Control Board, Hoshiarpur. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. P.C. Suman, Advocate, with Mr. Naresh Prabhakar, Advocate, for the appellant. Mr. Amit Jain, Advocate, for respondent No. 1. None for respondent No. 2. Mr. Kulraj Rai, Advocate, for respondent No. 3. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, dated 29.01.2000, rendered by the Court of Civil Judge RSA No. 4359 of 2006 2 (Junior Division), Hoshiarpur, vide which, it partly decreed the suit of the plaintiff, and, the judgement and decree, dated 26.09.06, rendered by the Court of District Judge, Hoshiarpur, vide which, it dismissed the appeal. 2. The facts, in brief, are that, the plaintiff, is the owner of the house, bearing No. 105, Bhawani Nagar, Bharwain Road, Hoshiarpur. It was stated that, on the western side of his house, there is a plot, belonging to defendant No. 1. It was further stated that defendant No. 1, had been running his factory of manufacturing card-board boxes, at some other place, for the last more than 4/5 years, but, now he was going to shift the same, to the western side of the house of the plaintiff. It was further stated that defendant No. 1, has collected the building material in the plot for the construction of factory for manufacturing card-board boxes. It was further stated that there are living rooms of the plaintiff, in the double storeyed house, adjoining the plot of defendant No. 1. It was further stated that the machinery, used for manufacturing card-board boxes, makes hammering noises, and this will be a source of constant nuisance to the comforts of the plaintiff and his family members. It was further stated that the possibility of causing damage to the house of the plaintiff, on account of the vibrations of hammering, could also not be ruled out. It was further stated that the plaintiff, also came to know that, defendant No. 1, had got sanctioned, a site plan, for erection of commercial building, adjoining the western side of his house. It was further stated that there RSA No. 4359 of 2006 3 is 15' wide street, on the western side of the plot of defendant No. 1, and, as such, the existence of the factory, shall cause constant hindrance in the user thereof. It was further stated that the entire locality, in which, the house of the plaintiff and plot of defendant No. 1 are located is residential. It was further stated that the matter, was also reported to defendant No. 3, vide application dated 04.08.98, as a result whereof, defendant No. 1, furnished an affidavit, to the effect, that he was going to set up godowns, on his plot, and not the factory. It was further stated that, as such, defendant No. 1, duped defendants No. 2 and 3, in getting the no objection certificate, and site plan sanctioned. It was further stated that, a legal notice dated 08.06.98, was also given, by the plaintiff, to defendant No. 1, in this regard, but a frivolous reply, was filed by him. Defendant No. 1, was many a time asked, to desist from his nefarious designs, but to no avail. Ultimately, a suit for permanent injunction, was filed. 3. Defendant No. 1 (appellant), put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the suit was pre-mature. It was admitted that the plaintiff, was having his house, towards the southern side of the property of defendant No. 1. It was stated that, on the northern side of the house of the plaintiff, defendant No. 1, was having a shed, where he had been running a small scale card-board manufacturing business, since 1984. It was further stated that, on the northern side, defendant No. 1, was having his own double storeyed RSA No. 4359 of 2006 4 residential building. It was further stated that, defendant No. 1, shifted his manufacturing unit of card-board boxes, only for the time being, to some other place. It was denied that the area was residential. It was further stated that, at a distance of 200 yards, from the area, in question, there was a big factory of manufacturing pressure cooker accessories. It was admitted that defendant No. 1, had started collecting construction material, but not for constructing a manufacturing unit. It was further stated that defendant No. 1, was only to purchase the cardboard and re-shape the same, into boxes, by cutting the same into sizes, by a hand cutter at the plot aforesaid. It was further stated that, for that purpose, a hand operated cutter and other small gadgets, were required, to be installed. It was further stated that none of the machines aforesaid, was going to create any hammering noise or vibrations. It was further stated that only a cemented building, was required to be erected, on pillars and beams, in place of tin sheds. It was further stated that there would also be no side walls, in the manufacturing unit. It was further stated that the plaintiff, could not pre-suppose, as to where, the machinery, was going to be placed, by defendant No. 1, for the aforesaid activity. It was further stated that setting up of the aforesaid unit, was not going to cause any disturbance to the residents of the locality. It was further stated that, in fact, the son of the plaintiff, himself earlier started a small scale business of manufacturing ball pens, but on account of loss, the same was closed down. It was further stated that the commercial building, being raised RSA No. 4359 of 2006 5 by defendant No. 1, on his plot, was not meant for running a factory, but for the purpose of running a small scale cottage business. It was further stated that there would be office, watchman room and store, in the unit, but that did not mean that, the same would cause any sort of disturbance to others. It was further stated that with the setting up of the unit. The remaining averments, were denied, being wrong. 4. Defendant No. 2, filed a separate written statement, stating therein, that defendant No. 1, submitted site plan dated 24.06.98, for sanctioning the same. It was further stated that the Municipal officials, visited the spot, on 26.06.98, raised some objections, for the proposed construction, and asked defendant No. 1, to remove the same. It was further stated that, on 04.07.98, defendant No. 1, moved an application, that the objections raised, had been removed and, as such, the site plan was sanctioned. It was further stated that defendant No. 1, got the site plan sanctioned, from the Municipal Council, for stores and residential house. It was further stated that, on 09.07.98, the Municipal Council, transmitted the site plan, to the Pollution Control Board, Hoshiarpur, for issuing no objection certificate, which issued the same, to defendant No. 1, on 20.07.98. 5. Defendant No. 3, also filed a separate written statement, stating therein, that no objection certificate, had been issued only for the construction of store, subject to the condition, that the same met the Municipal bye-laws. The remaining averments, were denied, being wrong. RSA No. 4359 of 2006 6 6. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is entitled to permanent injunction as prayed for? OPP (ii) Whether the plaintiff has no locus standi to file the present suit? OPD (iii) Whether the suit of the plaintiff is premature and as such, not maintainable at this stage? OPD (iv) Whether the plaintiff has not come to the Court with clean hands and has concealed true and material facts from the Court. If so, its effect? OPD (v) Whether the site plan attached with the plaint is incorrect. If so which is the correct site plan? OPD (vi) Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD (vii) Whether the suit of the plaintiff is not maintainable against defendants No. 2 and 3? OPD (viii) Whether the civil Court has got no jurisdiction to entertain and try the present suit against defendant No. 2? OPD2. (ix) Relief. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, partly decreed the suit of the plaintiff. 8. Feeling aggrieved, an appeal, was preferred by the defendant/appellant, which was dismissed, by the Court of District RSA No. 4359 of 2006 7 Judge, Hoshiarpur, vide judgement and decree dated 26.09.06. 9. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendant/appellant. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, that the mere possibility of apprehended future nuisance, could provide a cause of action, to the plaintiff/respondent, to file a suit for injunction? 12. The Counsel for the appellant, submitted that the defendants, only got sanctioned the plan of the vacant site, and no construction, was raised thereon, when the suit was filed. He further submitted that, no machinery, had been installed, by the plaintiff, in the property, in dispute, which fell within the locality, having so many other commercial establishments, and, as such, it could not be said, that any cause of action arose, in favour of the plaintiff, to file a suit for injunction, restraining the defendants, from installing the machinery etc. for commercial purposes. He further submitted that, in respect of future nuisance, which might arise, on account of the installation of the machinery and working thereof, in the property, in dispute, no cause of action, could possibly accrue, in favour of the plaintiff, to file the suit. He further submitted that, even if, it was hypothetically assumed, that RSA No. 4359 of 2006 8 the noise, on account of the installation and working of machinery, in future, would be created, then a balance, could be struck, by the Courts below, by directing, that the same (machinery), could only be operated for commercial purposes, for a limited period, so as to avoid nuisance, to the persons, living in the neighbourhood. He further submitted that the defendant/appellant, being the owner of the property, in dispute, could use the same, for any purpose, he liked, with some restrictions. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 13. On the other hand, the Counsel for the respondents, submitted that the Courts below, were right, in coming to the conclusion, that a suit for permanent injunction, was maintainable, on behalf of the plaintiff/respondent, as he apprehended the causing of nuisance, on account of installation and working of machinery, in a residential plot, situated in the immediate back side of his house by defendant No. 1/appellant for manufacturing card-board boxes. He further submitted that the judgements and decrees of the Courts below, being legal and valid, are liable to be upheld. 14. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and RSA No. 4359 of 2006 9 others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention, was very clear, that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. Pawan Kumar, defendant No. 1/appellant, while appearing, as DW8, admitted as correct, that the house of the plaintiff, adjoined his property. He also admitted as correct, that the residential rooms of the house of the plaintiff/respondent, were on the site, adjoining his plot. He also stated that, on the back-side of the house of the plaintiff/respondent, after crossing a plot upto 15' wide passage, there is no construction existing over any part of the said plot. He also admitted that the wall of the house of the plaintiff/respondent, was lying naked, on the side of his plot. The shed was constructed by the defendant/appellant, in the year 1988. Prior to that, the plot, on the back-side of the house of the plaintiff/respondent, was un-constructed. He further admitted that he had got one horse power electricity connection, for commercial purpose, for running a disk cutter, for making crates. The said connection, was taken by him, 2-3 years prior to setting up of the above RSA No. 4359 of 2006 10 shed. He further admitted that the said connection, was running. He did not state even a single word, that the said connection, was transferred, to his new place, which is at a distance of 500 yards, from the residential house of the plaintiff/respondent. From his statement, it was, thus, proved that, he was running a commercial unit, at the time of filing the suit, at some other place. Defendant No. 1/appellant, wanted to shift his business, in the property, in dispute. It is evident, from the record, that the plaintiff/respondent, constructed his house, in the year 1987, and started living with his family therein. His house is double storeyed. His residential rooms, are on the western side of his house. The plaintiff, and his family members, are living and sleeping, in the said rooms. It is further evident, from the record that, in the year 1991, first of all, defendant No. 1, started manufacturing card-board boxes and selling the same, and shortly thereafter, installed machinery for manufacturing card-board boxes alongwith saw machine. When he started manufacturing card-board boxes, the machinery, which was being used, for that purpose, was making hammering noise, and, on that account, there used to be vibrations in his residential building. At that time, the machinery, was being used, for work for 24 hours, and it became difficult for the plaintiff, even to sleep, in the night. The defendant/appellant, got sanctioned site plan DW9/1, from defendant No. 2, for erecting stores/offices/watchman room/room for finished goods apart from residential portion, regarding which, the plaintiff/respondent, being the immediate back-side neighbour of RSA No. 4359 of 2006 11 defendant No. 1/appellant, could certainly be said to be at a great disadvantageous position. It is further evident, from the evidence, on the record, that a number of complaints, were received, by the Municipal Committee, from various owners of the residential houses, in the locality, that defendant No. 1/appellant, was going to install his machinery, in the property, in dispute, for the purpose of manufacturing card-board boxes. It was further proved, from the evidence, on record, that Bhawani Nagar, wherein, the property, in dispute, is situated, is primarily residential area. It was also proved, from the evidence, on record, that defendant No. 1/appellant, was trying to raise construction, for the purpose of setting up of the card-board boxes manufacturing unit, in the property, in dispute, in violation of the site plan DW9/1. The Courts below, were, thus, right in coming to the conclusion that, from the record, it was proved, that future nuisance, which was going to be caused, by defendant No. 1/appellant, by installing the machinery and working of the same with electric motors, for manufacturing card- board boxes was imminent, or was likely to cause such damage, as would be irreparable if allowed to occur. In Kuldip Singh Vs. Subhash Chander Jain and others, 2000(2), PLJ, 87 (SC), it was held, that if any person was apprehending future nuisance, which was shown to be either imminent or likely to cause such damage, as would be irreparable, then a cause of action, arises to him, to file a suit for permanent injunction. The Courts below, were also right, in holding, that the report of Mr. B.S. Mann, an official of the Municipal RSA No. 4359 of 2006 12 Committee, was only one-sided, and no reliance thereon, could be placed. The Courts below, were, thus, right in holding, that the suit was maintainable. The submission of the Counsel for the appellant, in this Court, being without merit, must fail, and the same stands rejected. 15. The Counsel for the appellant, however, placed reliance, on Gotham Construction Co., Vs. Amulya Krishna Ghose and others, AIR, 1968, Calcutta, 91, and submitted that, no cause of action, to file the suit, in favour of the plaintiff/respondent arose. He further submitted that, even if, the Courts below, came to the conclusion, that some nuisance, was likely to be caused, on account of the operation of the machinery, directions, could be issued, for reduction of the noise or for operation of the same, for limited period daily, and no decree for injunction, could be passed. In Kuldip Singh's case (supra), the principle of law, laid down, by the Apex Court, was to the effect, that future nuisance is actionable, if it is either imminent or likely to cause such damage, as would be irreparable, once it is allowed to occur. In the instant case, since defendant No. 1/appellant, earlier installed the machinery and operated the same, by way of electric motors, which created nuisance, and thereafter, shifted the same to some other premises, and was likely to shift it again, to the premises, in dispute, the Courts below, were right, in holding, that the nuisance, was imminent and likely to cause such damage, as would be irreparable, once it is allowed to occur. The intention of defendant No. 1/appellant, was required to be gathered, from the reading and appreciation of the RSA No. 4359 of 2006 13 independent evidence produced. Once his intention became clear, that he had got sanctioned a plan, from the Municipal Committee, and was immediately going to install the machinery, for operating the same by electric motors, certainly the persons, living the neighbourhood, apprehended imminent nuisance. 16. So far as the issuance of directions for operation of machinery for a limited period daily or for decreasing the noise by using some noise reduction gadget, is concerned, it may be stated here, that the Courts below, were right, in coming to the conclusion, that no such directions, could be given, in the facts and circumstances of the case, as, even if, the machinery, was operated for a limited period daily through electric motors, certainly nuisance will be created, as a result whereof, the neighbourers would have to spend uncomfortable and sleepless nights, besides affecting the studies of their wards. No help, therefore, can be drawn, by the Counsel for the appellant, from Gotham Construction Co's case (supra). The submission of the Counsel for the appellant, being devoid of merit is rejected. 17. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgements and decrees of the Courts below, are, thus, liable to be upheld. RSA No. 4359 of 2006 14 18. The substantial question of law, depicted above, is answered, against the appellant. 19. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 08.01.2010 (SHAM SUNDER) Amodh JUDGE