IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 SA.No. 960 of 1996(E) --------------------- AS.9/1996 of SUB COURT, HOSDRUG OS.430/1993 of MUNSIFF COURT, HOSDRUG .................... APPELLANT(S): APPELLANTS:PLAINTIFFS: ---------------------------------------------------------------- 1. K.V.BHARATHAN 2. K.V. RAMANI BOTH ARE CHILDREN OF K.V. KANNAN, RESIDING AT WEAVERS STREET, NILESHWAR VILLAGE AND POST, HOSDRUG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENT(S): RESPONDENTS:DEFENDANTS: ------------------------------------------------------------------------- 1. V.V.KUMARAN, SON OF CHAKLY GOVINDAN, RESIDING AT KARUVACHERY IN NILESHWAR VILLAGE AND POST, HOSDRUG TALUK, KASARAGOD DISTRICT. 2. THALAKKALA LAXMI, W/O.CHATHU, RESIDING AT WEAVERS COLONY, THAIKADAPPURAM OF NILESHWAR VILLAGE AND POST, HOSDRUG TALUK. 3. NILESHWAR PANCHAYATH, REPRESENTED BY ITS SECRETARY, P.O. NILESHWAR. R1 & R2 BY ADV. SRI.KODOTH SREEDHARAN R3 BY SRI.C.S.ANANTHAKRISHNA IYER, SENIOR ADVOCATE, BY ADV. SRI.K.K.MOHAMED RAVUF, SRI.K.SAJAN VARGHESE. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON 3/09/2010 DELIVERED THE FOLLOWING: kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 960 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of September, 2010. JUDGMENT The plaintiff, who was non-suited by both the courts below are the appellants before this court. 2. The suit was one for permanent prohibitory injunction. The complaint of the plaintiffs was that in plaint B schedule property, which belongs to the second defendant, they intend to start a tyre re-treading factory, which according to the plaintiffs will cause considerable nuisance to them. According to them, the said firm is likely to pollute water and air and may make life miserable in the residential house. They therefore sued seeking to restrain the defendants from starting the re-treading factory. 3. The defendants resisted the suit. They pointed out that there are no bonafides in the suit at all. The suit is the result of collusion between the plaintiffs S.A. 960 of 1996. 2 and the third defendant. According to defendants 1 and 2 no nuisance or pollution whatsoever will be caused by the functioning of tyre re-treading unit in the plaint schedule property. B schedule property was taken on rent by the defendants for running a tyre re-treading unit. He had obtained statutory clearance for the same. The Panchayat, after detailed enquiry, had sanctioned the unit. According to the defendants, the first defendant is using only one room in three rooms and the other two rooms are kept vacant. Pointing out that the claim made by the plaintiffs is baseless, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 and 2 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants examined D.Ws. 1 and 2 and had Exts.B1 to B3 marked. Exts. C1 to C3 are the commission reports and plans. 5. On an appreciation of the evidence in the case, the trial court found that there was no justification for the S.A. 960 of 1996. 3 apprehension expressed by the plaintiffs and dismissed the suit. Plaintiffs carried the matter in appeal. The appellate court on an independent evaluation of the materials before it concurred with the trial court and dismissed the appeal. The said judgments and decrees are assailed in this Second Appeal. 6. The following substantial questions of law are seen formulated in this second appeal: “A. Are not the decisions of the courts below bad for want of consideration of, let alone a decision on the relief claimed against the 3rd defendant. If so are they not liable to be set aside? B. Does the building in which the Tyre Re-treading company run by the 1st defendant comply with the building Rules. If not is the 1st defendant entitled to run the company from that building? C. Is the first defendant entitled to start the company without the consent of the plaintiffs, who are the nearest neighbours. If not, is he not liable to be injuncted from running the company? S.A. 960 of 1996. 4 D. Is not the findings of the courts below that there will be neither sound nor air pollution by running the company opposed to the evidence on record? E. In the facts and circumstances of the case are the decisions of the courts below sustainable?” 7. Learned counsel appearing for the appellants pointed out that the courts below have erred themselves in law and on facts in non-suiting the plaintiffs. The plaintiffs have clearly showed the possibility of considerable pollution and nuisance being caused as a result of the running of the tyre re-treading unit in B schedule property. It is also their case that the third defendant had, without conducting proper enquiry, granted permission to run the unit. It was also pointed out that the evidence of P.Ws. 1 and 2 have not been properly appreciated. Learned counsel also pointed out that the unit is intended to be run in a residential area. 8. There is no basis for the above contention at all. Both the courts below have elaborately considered the evidence on record and had come to an identical conclusion S.A. 960 of 1996. 5 that there is no basis for the apprehension expressed by the plaintiffs. One has to immediately notice that all that is sought to be prohibited is creation of an anticipated nuisance. The plaintiffs anticipate that smell and noise emanating from the tyre re-treading unit will cause considerable harm to them and make their life miserable in plaint A schedule property. Plaintiffs find considerable support in their anxiety from the evidence of P.W.2. He described in detail the procedure that is being adopted in a tyre re-treading unit. But both the courts below have analyzed his evidence and came to a conclusion that he cannot be believed for convincing reasons. The complaint of the plaintiffs was that the tyre re-treading unit is being run in a thickly populated area and that has to be prevented. However, the plaintiffs were unable to show any specific provision that such an unit could not be run in such an area. The first defendant was able to show that such units are being run in other residential areas. The evidence of D.W.2 shows that the claim of the plaintiffs that loud noise and S.A. 960 of 1996. 6 smell will emanate from the unit is without basis. He describes the process by which re-treading is done. He also cited examples of such units being run in Kanhangad and Nileshwar in commercial as well as residential areas. 9. The first defendant is actually running another unit at Kalikkadavu. He examined D.W.2, a close resident of the unit and who deposed before court that no nuisance was caused by the running of the unit. It is significant to notice that the first defendant has taken all necessary precautions and they also obtained necessary permission and licence from the authorities concerned. The Pollution Control Board has stipulated certain conditions for running the unit. There is no evidence to show that the unit is running in violation of the conditions. 10. Both the courts below have found that on going through the evidence available, it is not clear what exactly is the nuisance anticipated by the plaintiffs. It is also found by the courts below that the socalled sufferings are S.A. 960 of 1996. 7 more imaginary than real and the motive was something else. 11. On going through the evidence and after hearing the counsel, it is felt that no grounds are made out to interfere with the findings of the courts below. It is not possible to believe that the third defendant Panchayat, which is the statutory authority, will not take into consideration the relevant aspects before granting sanction for running the unit. The result is that, this appeal is without merits and it is liable to be dismissed. I do so. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.