IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 OP(C).No. 3251 of 2011(O) ------------------------------------- OS.47/2011 of MUNSIFF COURT, CHALAKUDY. .................... PETITIONER: -------------------- SHABU, AGED 39, S/O.OUSEPH BUSINESS, MALPAN HOUSE, CHOUKA DESOM ELINJIPRA VILLAGE, MUKUNDAPURAM TALUK, ELINJIPRA P.O., PIN- 680 721. BY ADV. SRI.K.S.BHARATHAN RESPONDENT(S): -------------------------- 1. SAJINI, W/O. ERUVEETIL ARAVINDAKSHAN KALIKKAL DESOM, KODASSERY VILLAGE MUKUNDAPURAM TALUK, ELINJIPRA P.O., PIN -680 721. 2. RATHNAKUMARY, W/O.PUNDHAPARAMBIL MOHANAN, KALIKKAL DESOM, KODASSERY VILLAGE MUKUNDAPURAM TALUK, ELINJIPRA P.O., PIN- 680 721. 3. SUBRAN, S/O.CHENTHURUTHY KUNJAN, KALIKKAL DESOM, KODASSERY VILLAGE MUKUNDAPURAM TALUK, ELINJIPRA P.O., PIN- 680 721. 4. ASHOKAN, S/O.CHENTHURUTHY KUNJAN, KALIKKAL DESOM, KODASSERY VILLAGE MUKUNDAPURAM TALUK, ELINJIPRA P.O., PIN- 680 721. 5. RAVI, S/O. CHENTHURUTHY KUNJAN, KALIKKAL DESOM, KODASSERY VILLAGE MUKUNDAPURAM TALUK, MECHIRA, PIN- 680 721. OP(C).No. 3251 of 2011(O) 6. PARAMESWARAN, S/O. CHENTHURUTHY KUNJAN, KALIKKAL DESOM, KODASSERY VILLAGE MUKUNDAPURAM TALUK, ELINJIPRA P.O., PIN- 680 721. 7. VELAYUDHAN, S/O.THAYYIL CHOTHY KALIKKAL DESOM, KODASSERY VILLAGE MUKUNDAPURAM TALUK, ELINJIPRA P.O., PIN- 680 721. 8. SHAJU, S/O. THAYYIL CHOTHY KALIKKAL DESOM, KODASSERY VILLAGE MUKUNDAPURAM TALUK, ELINJIPRA P.O., PIN -680 721. 9. KRISHNAN, S/O. THAYYIL CHOTHY KALIKKAL DESOM, KODASSERY VILLAGE MUKUNDAPURAM TALUK, ELINJIPRA P.O., PIN- 680 721. 10. SAROJINI, D/O. THAYYIL CHOTHY KALIKKAL DESOM, KODASSERY VILLAGE MUKUNDAPURAM TALUK, ELINJIPRA P.O., PIN- 680 721. 11. MADHAVAN, S/O. THAYYIL CHOTHY KALIKKAL DESOM, KODASSERY VILLAGE MUKUNDAPURAM TALUK, ELINJIPRA P.O., PIN- 680 721. 12. KODASSERY GRAMA PANCHAYATH ,REPRESENTED BY THE SECRETARY, KODASSERY GRAMA PANCHAYATH, KODASSERY, ELINJIPRA P.O., PIN- 680 721. R1 & R2 BY ADV. SRI.T.N.MANOJ. R12 BY ADV. SRI.ASOK M.CHERIAN, SRI.S.KANNAN. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 3251 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.47/2011 FILED ON 24/01/2011 ON THE FILES OF THE MUNSIFFS COURT, CHALAKUDY. EXT.P2 TRUE COPY OF THE IA NO.214/2011 FILED ON 24/01/2011. EXT.P3 TRUE COPY OF THE COUNTER TO EXT.P2 FILED BY THE PETITIONER DATED 19/02/2011. EXT.P4 TRUE COPY OF THE REPORT FILED BY THE COMMISSIONER ON 02/02/2011. EXT.P4(A). TRUE COPY OF THE ROUGH SKETCH FILED BY THE COMMISSIONER ON 02/02/2011. EXT.P5 TRUE COPY OF THE LICENSE ISSUED BY THE 12TH RESPONDENT. EXT.P5(A). TRUE COPY OF THE LICENSE ISSUED BY THE 12TH RESPONDENT ON 19/10/2010. EXT.P6 TRUE COPY OF THE SHOT FIRER'S PERMIT GRANTED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM DATED 22/03/2010. EXT.P6(A). TRUE COPY OF THE COVERING LETTER DATED 22/03/2010 ACCOMPANYING EXT.P6. EXT.P7 TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY POLLUTION CONTROL BOARD DATED 08/04/2010. EXT.P8 TRUE COPY OF THE QUARRYING PERMIT GRANTED BY THE SENIOR GEOLOGIST OF THE DISTRICT OFFICE OF DEPARTMENT OF MINING AND GEOLOGY DATED 10/01/2011. EXT.P9 TRUE COPY OF THE EXPLOSIVE LICENSE ISSUED BY THE JOINT CHIEF CONTROLLER OF EXPLOSIVES, SOUTH CIRCLE, CHENNAI DATED 02/12/2009. EXT.P9(A). TRUE COPY OF THE APPROVED SITE PLAN OF THE PROPOSED EXPLOSIVE MAGAZINE. EXT.P9(B). TRUE COPY OF THE APPROVED SITE PLAN OF 'D' & 'E' TYPE MAGAZINES. EXT.P9(C). TRUE COPY OF THE COVERING LETTER DATED 11/01/2010. (P.T.O.) OP(C).No. 3251 of 2011(O) EXT.P10 TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS)NMO.239/2010/ID ISSUED BY THE SPECIAL SECRETARY TO GOVERNMENT, INDUSTRIES (IP) DEPARTMENT DATED 01/12/2010. EXT.P11 TRUE COPY OF THE LETTER ADDRESSED BY THE DISTRICT COLLECTOR, THRISSUR TO THE DEPUTY DIRECTOR OF PANCHAYATH, THRISSUR DATED 25/10/2010. EXT.P12 TRUE COPY OF THE ORDER DATED 15/06/2011 IN IA NO.214/2011 IN OS NO.47/2011 ON THE FILES OF THE MUNSIFF COURT, CHALAKUDY. EXT.P13 TRUE COPY OF THE CMA NO.33/2011 FILED BEFORE THE SUB COURT, IRINJALAKUDA ON 25/06/2011. EXT.P14 TRUE COPY OF THE IA NO.2688/2011 FILED ON 25/06/2011 SEEKING STAY OF THE OPERATION OF EXT.P12 TILL DISPOSAL OF EXT.P13. EXT.P15 TRUE COPY OF THE MINING MATE'S CERTIFICATE OF COMPETENCY DATED 10/02/1999 ISSUED TO MR.E.K.JOSE. EXT.P16 TRUE COPY OF THE AGREEMENT DATED 16/6/2011 BETWEEN THE PETITIONER AND MR.E.K.JOSE. EXT.P17 TRUE COPY OF THE OBJECTIONS TO EXT.P14 FILED ON 05/07/2011. EXT.P18 TRUE COPY OF THE ORDER OF SUB COURT, IRINJALAKUDA DATED 13/07/2011 IN EXT.P14. EXT.P19 TRUE COPY OF THE MINING MATE'S CERTIFICATE OF COMPETENCY DATED 30/10/1980 ISSUED TO PAREED BEERAN. EXT.P20 TRUE COPY OF THE AGREEMENT DATED 21/07/2011 BETWEEN THE PETITIONER AND PAREED BEERAN. EXT.P21 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 26/07/11 IN OPC NO.2404/2011. EXT.P22 TRUE COPY OF THE ARGUMENT NOTES SUBMITTED ON 19/09/2011 ON BEHALF OF THE PETITIONER. EXT.P23 TRUE COPY OF THE JUDGMENT IN CMA.NO.33/2011 OF THE PRINCIPAL SUB COURT, IRINJALAKUDA, DATED 04/10/2011 WRITTEN DOWN AND TYPED. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3251 of 2011 ==================================== Dated this the 19th day of October, 2011 J U D G M E N T Plaint A schedule consists of two items – 25 cents and a building and 10.5 cents and a building. Those items belong to respondents 1 and 2-plaintiffs 1 and 2, respectively. Even as per the version of petitioner-first defendant, respondents 1 and 2 were residing in the suit property since long. First respondent has either reconstructed or newly constructed a building in plaint A schedule item No.1. Plaint B schedule item which is more than 8 acres belonged to the petitioner-first defendant. Petitioner and respondents 3 to 11 were conducting quarrying operations in plaint B schedule using jack hammer and explosives. Respondents 1 and 2 filed O.S. No.47 of 2011 in the court of learned Munsiff for a decree for prohibitory injunction to restrain petitioner and respondents 3 to 11 from conducting blasting operations in the quarry and the 12th respondent from issuing licence to them. Along with the suit respondents 1 and 2 filed I.A. No.214 of 2011 for an order of temporary injunction. That application was opposed by petitioner and respondents 3 to 11. Learned Munsiff passed O.P(C) No.3251 of 2011 -: 2 :- Ext.P12, order whereby petitioners and respondents 3 to 11 were restrained from doing quarrying operation in plaint B schedule items or from doing any rock blasting operation until further orders. The 12th respondent was restrained from giving any permission to petitioner and respondents 3 to 11 to do blasting operation in plaint B schedule property. Petitioner challenged that order before the learned Sub Judge, Irinjalakuda in C.M.A. No.33 of 2011. One of the grounds on which learned Munsiff granted injunction as per Ext.P12, order was that petitioner had not produced all necessary licences as provided under the law, in particular the mining mates certificate under the provisions of the Mines Act. When the C.M. Appeal was pending it would appear that petitioner obtained the said certificate and filed O.P(C) No.2404 of 2011 in this Court claiming that petitioner has obtained all necessary licences and permits from the authorities concerned. This Court disposed of that Original Petition by Ext.P21, judgment making it clear that it is open to the petitioner to request the learned Sub Judge to expedite hearing and disposal of the C.M. Appeal if steps on that appeal are over. This Court also directed that since the said appeal is pending it is open to the petitioner if he is otherwise O.P(C) No.3251 of 2011 -: 3 :- entitled to produce the relevant records as provided under the law and request that court to consider those documents while deciding the C.M. Appeal. Learned Sub Judge passed Ext.P23, judgment confirming Ext.P12, order passed by the learned Munsiff. Exhibit P23, judgment confirming Ext.P12, order is under challenge. 2. Learned counsel for petitioner raised various contentions. It is contended that there is no actionable nuisance even as revealed by Ext.P4, report of the Advocate Commissioner so that respondents 1 and 2 could institute the suit against petitioner and others. Reliance is placed on the decision in Thomas v. Katnthimathi Pillai (1964 KLR 359). To support the contention that there is no actionable nuisance revealed either by the report of the Advocate Commissioner or the averments in the plaint reliance is placed on the decision in M.Gurudas v. Rasaranjan ([2006] 8 SCC 367). It is also the contention of learned counsel that it is within the statutory power of the authority concerned to issue or not to issue licence and once the authority has issued the licence proper course is to challenge the order issuing the licence as the statute provides. Reliance is placed on the decision in Municipal O.P(C) No.3251 of 2011 -: 4 :- Commissioner v. Provakar Prosad (AIR 1948 Calcutta 211), Kuldip Singh v. Subhash Chaneder Jain ([2000] 4 SCC 50) and Rule 49 of the Kerala Minor Mineral (Concession) Rules. According to the learned counsel circumstances proved in the case did not warrant an injunction restraining petitioner from engaging in a lawful trade or occupation. Reliance is placed on the decision in Ramrameshwari Devi v. Nirmala Devi ([2011] 8 SCC 249). It is also argued by the learned counsel that Ext.23, judgment would not show that relevant aspects of the matter were considered by the learned Sub Judge while confirming Ext.P12, order of the trial court. Learned counsel invited my attention to the decision in Seema Arshad Zaheer v. Municipal Corpn of Greater Mumbai ([2006] 5 SCC 282), in this regard. It is also argued that when the courts below have not referred to the relevant aspects of the matter in granting injunction it is within the power of this Court to interfere even in exercise of the power under Article 226 of the Constitution. 3. Learned counsel for respondents 1 and 2 invited my attention to Ext.P4, report of the Advocate Commissioner which O.P(C) No.3251 of 2011 -: 5 :- according to the learned counsel is prima facie evidence at this stage to show that the trade or occupation carried on by petitioner and respondents 3 to 11 creates health hazards and other injury to respondents 1 and 2. In such situation the mere fact that petitioner has obtained a licence is no shield to commit nuisance and engage in an activity which causes injury to respondents 1 and 2. It is well within the power of the civil court to interfere and ensure that life of respondents 1 and 2 and their quite living which is part of right to life is not in any way affected. Learned counsel has placed reliance on the decision in M.C.Mehta v. Union of India ([2004] 6 SCC 588 – paragraph 49). As regards power of the court to interfere in the matter and abate nuisance, reliance is placed on the decision in S.Martin v.Akshaya Textiles Ltd. ([2009] 6 MLJ 684). Relying on the decision in Shalini Shyam Shetty v. Rajendra Shankar patil ([2010] 8 SCC 329) it is argued that on a concurrent finding of fact entered by the courts below this Court is not required to interfere in exercise of the power under Article 227 of the Constitution. 4. So far as documents produced by petitioner before O.P(C) No.3251 of 2011 -: 6 :- the appellate court to show that he has obtained licence or permission from the authority concerned, it is pointed out by learned counsel for respondents 1 and 2 that there is an order of injunction restraining the 12th respondent from issuing any licence to the petitioner or respondents 3 to 11 and that it is in violation of the said order that the documents now pressed into service by petitioner have been issued by the 12th respondent. According to the learned counsel petitioner was not having any mining mates certificate at the time the suit was instituted and during the time petitioner was carrying on the blasting operations before suit. In the circumstances the documents produced by petitioner are not required to be taken into account. For, those licences or permits have been issued by the authorities concerned in violation of the order of injunction passed by the learned Munsiff as per Ext.P12, order. 5. Assuming that petitioner has obtained licences or other permits for blasting operations it is not as if those licences would act as a shield to commit nuisance if otherwise the act of the petitioner amounts to nuisance. Article 21 of the Constitution guarantees a citizen the right to life and that involves a decent and quite living. It is so held in M.C.Mehta v. Union of India, O.P(C) No.3251 of 2011 -: 7 :- in paragraph 49. There, reference is made to hazardous activities being carried on even with the licence obtained from appropriate authority. It is held that if it involves the life and liberty of persons it is well within the power of the court to interfere notwithstanding the grant of licence. Therefore the mere fact that petitioner has obtained licence or authority is not sufficient to permit him engage in blasting operations if it otherwise is hazardous or nuisance to respondents 1 and 2 and other persons. 6. So far as jurisdiction of civil court to interfere as above stated is concerned a licence is not a shield to commit nuisance. Any person whose civil right is affected is entitled to file a suit under Section 9 of the Code of Civil Procedure (for short, “the Code”) and that power is curtailed only to the extent that there is an express or implied bar created by any statute. Learned counsel for petitioner has not pointed out any statutory provision which curtailed expressly or impliedly the power of the civil court to abate nuisance. That is the principle laid down in S.Martin v. Akshaya Textiles Ltd. (supra), referring to various other decisions on the question. Therefore the power of civil court to interfere in the matter cannot be doubted. The O.P(C) No.3251 of 2011 -: 8 :- question is whether carrying on blasting operations by the petitioner is either hazardous or causing nuisance to respondents 1 and 2? 7. Now the suit is at the preliminary stage. The application for injunction has to be decided with reference to a prima facie case, irreparable injury and balance of convenience. I must bear in mind that in deciding an application for injunction under Rule 1 of Order XXXIX of the Code it is within the power of the court to receive evidence by affidavit. 8. Exhibit P4 is the report of the Advocate Commissioner submitted after inspecting the property on 26.01.2011. In paragraph 2 of the report the Advocate Commissioner has stated that quarry of petitioner is spread over, in about 5 acres of land situated towards the north-western portion of plaint A schedule. In the said 5 acres there are two small quarries which are very active. Commissioner could find a large number of workers engaged in blasting operations and loading boulders in vehicles. In paragraph 2(a) of Ext.P4 it is stated that the distance from plaint A schedule to the quarry of petitioner is about 100 metres. Commissioner has also reported that at the time he inspected the property work was going on in two O.P(C) No.3251 of 2011 -: 9 :- quarries in the five acres of land belonging to the petitioner. Using jack hammer, rock was being drilled upto a depth of 5 feet and using ordinary detonator blasting operations were being done. Commissioner says that there were blasting operations at 1.25 pm, 1.28 pm, 1.30 pm, 1.45 pm and 1.46 pm. Commissioner further says that there were sufficiently big sound created by the blasting operations and that it felt as if the place where the Commissioner was standing was shaking, some of which appeared to be minor in nature. In paragraph 4 of the report it is stated that house of respondents 1 and 2 was under construction and that at the time of blasting operations there was shaking of the land and sound pollution. Further in paragraph 4 it is stated that force of the explosion did not appear to be so strong to the Commissioner. In paragraph 5(a) there is again reference to the quarry of petitioner and respondents 3, 4 and 5 situated towards the northern portion of the 8 acres of land. That appears to be a mistake so far as petitioner is concerned since in the earlier portion of the report (inner page 2) the Commissioner has reported that quarry of petitioner is towards the north- eastern portion of plaint A schedule. The sketch accompanying Ext.P4, report also indicates that quarry of petitioner is situated O.P(C) No.3251 of 2011 -: 10 :- on north-western portion of plaint A schedule. The quarry of respondents 3 to 5 is towards north-eastern portion of plaint A schedule. Therefore reference to the quarry in paragraph 5(a) of the report appears to be not concerning the quarry being operated by the petitioner. Still then, the observations earlier made by the Commissioner in Ext.P4 that when explosion was made in the quarry of petitioner the land appeared to be shaking relate to the quarry of petitioner as well. 9. Learned counsel for petitioner would contend that there is nothing in Ext.P4, report to indicate that it was when the Advocate Commissioner was standing in plaint A schedule property that he felt shaking of the land due to the explosion. But prima facie it is difficult to accept that argument since it is stated in paragraph 4 of Ext.P4 that house of respondents 1 and 2 is under construction and that at the time explosion took place, there was shaking of the land. Prima facie I am inclined to think that the said reference is to the plaint A schedule property. But I am not expressing any final opinion on that question at this stage since that is a matter to be decided by the trial court after examining the Advocate Commissioner, if required. The Commissioner has also reported about large and small cracks O.P(C) No.3251 of 2011 -: 11 :- seen on the walls of building in the plaint A schedule and even on parapet of the Well situated in that property. 10. It is pointed out by learned counsel that since Ext.P4 shows that quarry of petitioner is situated in a rubber plantation it is unlikely that pieces of granite stones fell from the quarry in the A schedule. According to the learned counsel, unless those pieces of granite stones have wings it could not fall in plaint A schedule. Even if it is assumed so and it is to be found in the course of trial pieces of granite stones found in plaint A schedule flew had not come from plaint B schedule. I must bear in mind that the Commissioner has referred to the presence of large and small cracks on the walls of the building in plaint A schedule as well as the parapet of the Well in plaint A schedule and the shake the land is experiencing at the time of explosion. At this stage I am unable to say that such cracks were not on account of explosion in the quarries or at any rate from the quarry operated by the petitioner. 11. It is pointed out by learned counsel for petitioner that quarry of petitioner is situated about 100 metres away from plaint A schedule. But prima facie the distance rule does not save the situation if blasting operations in the quarry of petitioner are O.P(C) No.3251 of 2011 -: 12 :- otherwise hazardous and causing nuisance to respondents 1 and 2. 12. In Ext.P12, order learned Munsiff has referred to these aspects of the matter. It is pointed out by learned counsel that in Ext.P12, order the learned Munsiff even went to extent of saying that licence was issued to the petitioner by the authorities concerned in violation of law but there is no pleading to that effect. Assuming so learned Munsiff has referred to Ext.P4, report to show that a prima facie case of nuisance is made out and blasting operation in the quarry of petitioner is to be prevented. 13. In Ext. P23, judgment of the appellate court it is pointed out that learned Sub Judge has not referred to the various contentions raised as to the existence or otherwise of nuisance. In that situation it is contended by learned counsel that this Court is justified in interfering with Ext.P23, judgment. 14. I must bear in mind that when the appellate court is agreeing with the view taken by the trial court it is not as if appellate court is required to give elaborate reasons for its conclusion. The appellate court need only generally agree with the view expressed by the trial court. In Ext.P23, judgment O.P(C) No.3251 of 2011 -: 13 :- learned Sub Judge has observed in paragraph 15 that Ext.P4, report of the Advocate Commissioner shows that the damage was likely to have been caused by the blasting operations. In paragraph 16 it is stated that a perusal of the order of trial court (Ext.P12) shows that there is a ground urged by respondents 1 and 2 that licence or permission obtained by the petitioner was not proper or duly issued in accordance with law (regarding that matter also learned counsel for petitioner has contention that there is no such plea in the plaint). Paragraph 20 of Ext.P23 states that there is no reason to come to a different conclusion than the one arrived at by the trial court and the damage noted in Ext.P4, report shows that apprehension of respondents 1 and 2 is genuine. 15. In deciding whether respondents 1 and 2 have made out a prima facie case what is required to be considered is only whether they have made out a case which requires a deeper consideration in the course of trial. My attention is also drawn to the view expressed in N.D. Vasu's Laws of Injunction at page 853 where there is reference to legalized nuisance. It is stated that acts which are at common law are nuisance may be legalized by statute if such legislation does not amount to taking O.P(C) No.3251 of 2011 -: 14 :- or damaging of property forbidden by constitutional provisions. This passage is referred by the learned counsel for petitioner to contend that petitioner has obtained licence and other permit from the authority concerned. But referring to that, I have already stated that licence is not a shield to commit nuisance or to indulge in hazardous activities as held by the Supreme Court in M.C.Mehta v. Union of India – paragraph 49 (supra). 16. I must also bear in mind the limited jurisdiction this Court has, in interfering with concurrent finding of fact under Article 227 of the Constitution. It is held in Jai Sing v. MCD ([2010] 9 SCC 385) that the power under Article 227 of the Constitution cannot be exercised like a “bull in a china shop” to correct all errors of judgment of a Court, or Tribunal, acting within limits of its jurisdiction. Correctional jurisdiction can be exercised where orders have been passed in grave dereliction of duty or in flagrant violation of fundamental principles of law or justice. It is also held that the High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. 17. In the light of what I have stated above I do not find reason to interfere with the injunction granted by the trial court as confirmed by the appellate court. O.P(C) No.3251 of 2011 -: 15 :- 18. At the same time, if petitioner is lawfully engaged in a trade or occupation it is necessary that the trial court should considers that and strikes a balance with the right of respondents 1 and 2 for quite living while deciding the suit. Trial court shall look into whether in what possible manner, without doing violence to the right of respondents 1 and 2 the lawful activity (if any) of petitioner and respondents 3 to 11 could be allowed to continue if such a course is found practical and possible. With the above observations the Original Petition is dismissed. But learned Munsiff, Chalakkudy is directed to dispose of the suit as early as possible untrammelled by any observations contained in Ext.P12, order, Ext.P23, judgment or