IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 RSA.No. 920 of 2011() --------------------- RFA.80/2003 of II ADDL. DISTRICT & SESSIONS COURT, KOLLAM OS.696/1997 of MUNSIFF COURT, KARUNAGAPPALLY APPELLANT/NOT A PARTY IN O.S. AND R.F.A ------------------------------------------------------------------- MUNEER, S/O.SUBAIRKUTTY, MUNEER MANZIL, KARUNAGAPPALLY P.O., KOLLAM. BY ADV. SRI.S.SUDHEESHKAR SRI. K.SIJU RESPONDENTs & PLAINTIFF & DEFENDANTS 2,1 IN O.S. & RESPONDENTS 1 AND 2 / APPELLANT IN RFA ----------------------------------------------------------------------------------------------------------------------- 1. SMT.KUTTY AMMA, W/O.KRISHNAN KUTTY NAIR, RET.GOVT.EMPLOYEE, LEKSHMI NIVAS, NEELIKULAM MURI, KULASEKHARAPURAM VILLAGE, HAILING FROM VELANGOTTU MADATHIL, NEELIKULAM MURI, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY TALUK. 2. KULASEKHARAPURAM GRAMA PANCHAYATH, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY TALUK, REPRESENTED BY ITS SECRETARY. 3. AJMAL, S/O.THANGAL KUNJU, AJMAL COTTAGE, KADATHOOR MURI, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY TALUK. ADV. SRI.P.B.SURESH KUMAR, SENIOR ADVOCATE FOR R1 SRI.K.P.SUJESH KUMAR FOR R1 DR.K.P.SATHEESAN FOR R2 SRI.K.K.GOPINATHAN NAIR FOR R2 SRI.M.R.JAYAPRASAD FOR R2 SRI.P.MOHANDAS (ERNAKULAM) FOR R2 SRI.MATHEW SUNNY FOR R2 SRI.ANOOP.V.NAIR FOR R2 SRI.K.BINNI KAMAL FOR R3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 920 OF 2011 =========================== Dated this the 4th day of November,2011 JUDGMENT Assignee of the first defendant in O.S.696/1997 on the file of Munsiff Court, Karunagappally is the appellant. First respondent instituted the suit seeking a decree for permanent prohibitory injunction restraining the third respondent/first defendant not to run the Ice Plant without complying with the directions issued by the Medical Officer and for a mandatory injunction to the second respondent Panchayat to see that the functions only in compliance with the directions of the District Medical Officer. First respondent contended that plaint B schedule property is situated at a distance of about 20 feet north east of the plaint A schedule property belonging to the appellant. RSA 920/2011 2 Plaint A schedule property belongs to the first respondent. The properties in the locality are made up of loose sand. The third respondent constructed an Ice Plant in the plaint B schedule property under the name and style “T.K. Industries”. But the factory has not started functioning. Dangerous and offensive chemicals and gases are used for manufacturing ice. The residential house of the appellant is situated within a distance of 100 feet from the Ice Plant. The first respondent and the people of the locality are using well water for drinking and domestic purpose. If the Ice Plant is permitted to be run without complying with the directions of the District Medical Officer, it will cause environmental problem as well as health hazard of the neighbours. Therefore a decree for injunction was sought for. Second respondent Panchayat was subsequently impleaded. They did not contest the suit. First defendant resisted the suit contending that he is running the Ice Plant in the plaint B RSA 920/2011 3 schedule property after obtaining proper licence and permission from the authorities and the running of the Ice Plant will not cause any air, sound or water pollution or any health hazard as alleged and the local Grama Panchayat after complying with the rules and directions issued the licence and in such circumstances first respondent is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws.1 and 2, Dw1, Exts.A1 to A10, B1 to B4, C1 and C2 found that the evidence establish that third defendant had not complied with all the directions issued by the District Medical Officer and polluted water is flowing out from the Ice Plant which causes environmental problem and may also result in health hazard. A decree for permanent prohibitory injunction was granted restraining the first defendant from functioning the Ice Plant in the plaint B schedule property without complying with the directions and precautions issued by the District Medical Officer, Kollam. The second RSA 920/2011 4 defendant Panchayat was directed by a mandatory injunction to see that first defendant is strictly complying with the directions issued by the District Medical Officer. First respondent challenged the decree before the District Court, Kollam in RFA 80/2003. Learned Additional District Judge on reappreciation of the evidence found that Ext.C2 report of the Medical Officer establishes that first defendant had not complied with the directions issued by the District Medical Officer and as a result it causes environmental problem due to the pollution. Appeal was dismissed. 3. Appellant who purchased the plaint B schedule property and the Ice Plant during the pendency of the first appeal did not get himself impleaded in the first appeal. He filed this appeal after obtaining leave to challenge the decree. 4. Learned counsel appearing for the appellant was heard. 5. The argument of the learned counsel is that RSA 920/2011 5 evidence would establish that first defendant had not failed to comply with the direction given by the District Medical Officer and if that is complied with, there is no necessity to grant the decree sought for. It is argued that in such circumstances the decree is not sustainable. 6. On hearing the learned counsel, I do not find any substantial question of law is involved in the appeal. 7. The trial court and the first appellate court entered a factual finding that the functioning of the Ice Plant in the Plaint B schedule property, without complying with the directions issued by the District Medical Officer, causes environmental problem which is detrimental to the health of the public. The factual finding cannot be interfered in the light of the evidence. Decree for injunction granted was restraining the first defendant, assignor of the appellant, from functioning the Ice Plant without complying with all the directions and precautions issued by the RSA 920/2011 6 District Medical Officer. Second defendant Panchayat was directed to oversee the functioning and get themselves satisfied that the directions are complied with. In such circumstances, I do not find any reason to interfere with the decree. As no substantial question of law is involved, the appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006