1 S.B. CIVIL WRIT PETITION NO.3942/2005 (Narendra Dhoot Vs. The Municipal Corporation, Jodhpur & ors.) Date of Order :: 24th October 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Manish Shishodia for the petitioner Mr.I.S.Pareek ) for the respondents Mr.Mahendra Singh) for Mr.R.S.Saluja ) BY THE COURT: The grievance in this writ petition has been against the order dated 30.06.2005 (Annex.9) whereby the Municipal Corporation, Jodhpur proceeded to withdraw a No Objection Certificate (NOC) earlier issued to the petitioner on 18.05.2005 for installation of Diesel Generating Set (DG Set) at his residential property for the reasons that the affidavits of the adjoining neighbourers were not produced and the DG Set was not installed at the place marked for the purpose in the site plan. According to the petitioner, the DG Set purchased by him was conforming to the requirements of pollution control laws and although there was no such requirement of obtaining any permission from Municipal Corporation but he applied for the same to be on the safer side; that on his application, public notice was issued (Annex.7) inviting objections and thereafter the Municipal Corporation granted the NOC on 18.05.2005 (Annex.8) subject to the conditions enumerated therein. The 2 petitioner submitted that the DG Set has been functional thereafter without any problem; but the impugned communication dated 30.06.2005 (Annex.9) was issued in an arbitrary manner even without a notice to him. After taking note of the contentions as urged on behalf of the petitioner, this Court issued notices in this writ petition on 11.07.2005 and in the meantime, operation of the impugned order dated 30.06.2005 was ordered to remain stayed. At the request of the petitioner, the respondent No.1 State of Rajasthan was deleted from the array of parties on 27.09.2005 but on this very date, an application submitted by the adjoining neighbourer was allowed and he was ordered to be impleaded as a party respondent in this petition. It was, inter alia, submitted by the intervenor that he was the first neighbour of the petitioner and the DG Set proposed to be installed by the petitioner would cause him nuisance and it was upon his representation that the Municipal Corporation issued the impugned communication dated 30.06.2005. In this matter, there had been certain exchanges of propositions for resolving the dispute that had been essentially between the two neighbourers, as indicated in the orders dated 29.01.2008, 07.02.2008, 11.02.2008, 27.02.2008, 02.04.2008 and 24.04.2008. Ultimately, on 20.07.2008, the discussions crystalised into the proposition that the petitioner 3 would shift the disputed DG Set to another place; and it was also given out that the petitioner had placed orders for procuring anti- vibration pads; and the matter was adjorned at the request of the parties while noticing the submissions thus: ''Learned counsel for the petitioner submits that in pursuance of the discussion after a joint meeting and visit to the site in question by the counsels, the petitioner has agreed to shift the DG set in question from existing site to some other site in the set back area of the house by the end of June, 2008 so as to remove the nuisance caused by the noise and vibrations to the intervener neighbour Dr.Jagannath Das Vaishnav. He will also furnish undertaking to this effect for shifting of DG set to the appropriate place as decided in the joint meeting which took place on 26th April, 2008. Learned counsels may also file a joint report of such inspection and an undertaking of the petitioner to the aforesaid effect may also be filed before the next date of hearing and the DG set may be shifted to the appropriate place. Learned counsel for the petitioner also informed that the petitioner has placed an order for Anti-vibration pads 6 Nos. of Rs.800/- each upon M/s Everest Traders & Engineers Pvt. Ltd on 16th May, 2008. It is expected that the needful faction or shifting the DG Set would be done by the next date of hearing. Put up on 7th July, 2008 as prayed.'' After a few more adjournments, ultimately the petitioner filed an application (IA No.10800/2008) on 21.08.2008 with the submissions that he had shifted the DG Set on the roof-top of his constructed area as desired by the contesting respondent and, while placing on record the photographs of the earlier 4 position and the present position as Annexure-10 and Annexure-11 respectively, the petitioner pointed out that two other matters were pending between the parties: one before the Additional District Magistrate (City), Jodhpur in case No.22/2005 wherein proceedings have been initiated under Section 133 Cr.P.C. and another being the civil suit filed by the contesting respondent in respect of common wall between the parties; and the petitioner submitted that for his having shifted the DG Set to the most appropriate place, such proceedings deserve to be terminated with appropriate orders. In response to the said application, the contesting respondent would submit that the subject matter of civil suit is entirely different that has been filed by him against raising of the height of boundary wall by the petitioner and wherein temporary injunction has also been issued. It has, however, been submitted that the nuisance created by installation of DG Set earlier in violation of the plan having been redressed with its shifting, the answering respondent shall withdraw the case bearing No.22/2005 [with the ADM (City), Jodhpur] on the appropriate orders passed by this Court. On behalf of Municipal Corporation also, satisfaction has been expressed on the shifting so carried out by the petitioner. During the course of submissions, learned counsel for the petitioner has also placed on record the copies of the plaint and written 5 statements relating to the said civil suit. Having regard to the submissions made by learned counsel for the parties and the subsequent developments and events that have taken place, this Court is satisfied that so far the impugned order dated 30.06.2005 (Annex.9) is concerned, the same is rendered redundant and it appears appropriate to annul the same and at the same time to make it clear that at present there is no other objection in relation to the operation of the DG Set now installed by the petitioner on the roof of his building and the private respondent has categorically stated himself being satisfied with such shifting of the DG Set and the arrangements made in that regard by the petitioner. It has also been categorically stated on behalf of the private respondent that he would not be proceeding under Section 133 Cr.P.C. in case No.22/2005 pending in the Court of ADM (City), Jodhpur. However, in view of the shifting having already been made by the petitioner and the relevant parties stating their satisfaction, there does not appear any necessity to continue with the proceedings under Section 133 Cr.P.C. in relation to such operation of the DG Set concerned; and it appears appropriate and in the interest of justice that such proceedings be annulled. Ordered accordingly. Learned counsel for the petitioner, of course, emphasised on the submissions that on the earlier rounds of 6 exchange of settlement propositions, the root idea had been that all the disputes between the parties should come to an end with amicable settlement and hence, the proceedings in the pending civil suit should also be terminated but such a prayer has been resisted by the learned counsel appearing for the private respondent with the submissions that the subject matter of the civil suit pending between the parties is different and different issues are involved inasmuch as therein, the complaint of the plaintiff has been in relation to the construction raised by the petitioner, particularly by extending the height of boundary wall and covering of the set back. Learned counsel pointed out that the said civil suit has registered substantial progress and is on verge of final arguments; and lastly, for the demise of defendant No.1 father of the petitioner, the proceedings were undertaken for substitution of the legal representatives. It has been informed that the said civil suit is now fixed before the Trial Court on 27.11.2008. Having regard to their location as adjoining neighbours, it is of course desirable that as far as possible the petitioner and the contesting respondent should amiably look for resolution of their disputes in the spirit of mutual understanding but then, the submissions as made on behalf of the petitioner to deal with the aspect of the matter related with 7 the civil suit in this writ petition cannot be accepted for the simple reason that the subject matter of said civil suit is entirely different and is very difficult to be co-related with the subject matter of this writ petition. This Court would not like to make any further comment in this regard. Subject to the observations aforesaid, this writ petition succeeds to the extent indicated above; the impugned order dated 30.06.2005 (Annex.9) stands quashed and so also the proceedings in case No.22/2005 pending in the Court of ADM (City), Jodhpur shall stand terminated per the force of this order. In the circumstances of the case, there shall be no order as to costs. A copy of this order be sent to the ADM (City), Jodhpur. (DINESH MAHESHWARI), J. MK