C.R. No. 4859 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 4859 of 2009 (O&M) Date of Decision: 27.08.2009 Balwinder Singh & Anr. ...Petitioners Vs. Boota Singh & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.G.S.Sandhawalia, Advocate, for the petitioners. --- Vinod K.Sharma,J. CM No.20122-CII of 2009 Allowed as prayed for. CR No.4859 of 2007 The petitioners by invoking the jurisdiction of this court under Article 227 of the Constitution of India have challenged the order dated 22.7.2009 passed by learned Additional District Judge, Jalandhar whereby the application moved by the petitioners under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short the Code) has been ordered to be C.R. No. 4859 of 2009 2 dismissed. The petitioner/plaintiffs filed a suit on the pleadings that they are permanent residents of Behram Sarishta and owners of residential houses adjoining the disputed property since long which falls in the Lal Lakir of village abadi and is a residential area. The defendant/respondent No.1 is a strong headed person and has installed a flour mill in the premises shown in red colour in the site plan which is residential in nature and is thickly populated. He started running flour mill temporarily with the help of tractor and that the said flour mill was creating noise and vibrations, as a result of which walls of the residential houses developed cracks. Flour mill was said to be running with the help of tractor causing noise and air pollution and that the pollution was affecting the health of infants and children. It was also pleaded that due to noise the people were not able to converse with each other. It was also alleged that apart from noise, husk and dust of flour mill was injurious to the health of inhabitants. Defendant No.1 was said to have applied for electric connection to run the flour mill to Punjab State Electricity Board and that the settled guide-lines and norms of the Punjab State Electricity Board bar the Department from giving any such electric connection to any such commercial unit. It was pleaded case that the defendant/respondents in connivance with each other were violating all the norms and guide-lines and wanted to give commercial connection to respondent No.1. It was further pleaded that the requests of the petitioners in writing as well as oral not to allow commercial connection were ignored. C.R. No. 4859 of 2009 3 Along with the suit an application under Order 39 Rules 1 and 2 of the Code was moved seeking temporary injunction restraining defendant No.1 from running the flour mill in the premises and also restraining respondent No.2 from installing commercial electricity connection in the flour mill. The suit was contested by taking preliminary objections that the house of the plaintiffs does not adjoin the atta chaki of respondent No.1. It was also pleaded case that respondent No.1 has installed atta chaki in his premises about a year ago and since then it has been working in the area. Respondent No.1 applied for electric connection to Punjab State Electricity Board and the Board recommended release of connection for running atta chaki. It was pleaded that the consent has been given by the Gram Panchayat as also other villagers. Respondent No.2 even obtained report from halqa patwari as also from Kanungo in which it was reported that the running of flour mill did not create any nuisance. It was also pleaded that running of atta chaki neither created any noise or vibration nor was a source of nuisance. Respondent No.2 in the written statement took a stand that the suit was filed without any cause of action. It was further averred that respondent No.1 applied for electricity conection and also deposited security amount. The case set up by respondent No.2 was that running of atta chaki did not discharge any air pollution including noise in the atmosphere nor any toxic waste was released in water or air. It was specifically pleaded that 'no objection certificate' from Sarpanch of Gram C.R. No. 4859 of 2009 4 Panchayat was also furnished. It was further pleaded that installation order already stood issued. Learned trial court held that in the plaint the petitioners did not mention that since when the flour mill was being run by respondent No.1, though a specific plea was taken by respondent no.1 that it was running for the last more than one year. The learned court further held that documents placed on record showed that the flour mill was being run for more than one year. The suit was filed by the petitioners when they came to know about installation of electric connection in the premises. The learned trial court also noticed that it was not pleaded in the plaint that nuisance created by atta chaki was abnormal and unusual. No report of any expert was furnished that the noise was abnormal. Thus, the learned trial court held that it was not prima facie established that nuisance alleged by the petitioners was actionable or not. The learned trial court, therefore, held that the petitioners had no prima facie case nor balance of convenience was in their favour. The learned trial court further held that they were not to suffer irreparable loss, thus, dismissed the application. In the appeal finding recorded by the learned trial court was affirmed. Learned appellate court held that it was admitted case of the petitioners that presently respondent No.1 was operating flour mill with the help of tractor. The learned appellate court, therefore, held that operation of flour mill with the help of tractor creates much more noise than the electric motor which was going to be installed by the respondents for the purpose C.R. No. 4859 of 2009 5 of operation of such flour mill. Running of flour mill with electric motor was not to create substantial noise which could disturb the petitioners and other neighbours to the extent that they would not be able to hear the noise sitting in the houses or affect their normal work. The learned appellate court further held that there was no chance of creation of dust or husk affecting the health of the people. Appeal was also dismissed. Mr.G.S.Sandhawalia, learned counsel for the petitioners challenged the impugned order by contending that the learned courts below failed to notice that all the ingredients necessary for grant of temporary injunction stood proved in this case as it was proved that the petitioners had prima facie case and that the balance of convenience was in favour of the petitioners and furthermore that the petitioners are likely to suffer irreparable loss and injury if the injunction was not granted. Learned counsel for the petitioners referred to letter dated 27.2.2008 issued by the Executive Engineer vide which following documents were sought: (i) attestation from sarpanch that on the land where connection was sought was outside the Lal Lakir and there was no residential area surrounding it; (ii) Mutation of the said land along with demarcated site plan. The learned counsel for the petitioners thereafter referred to the objections filed by the petitioners against the grant of electricity connection. The petitioners referred to the letter dated 11.3.2008 issued by the Additional Superintending Engineer, Regulatory Division, Bhogpur, wherein Assistant Executive Engineer was directed to decide the C.R. No. 4859 of 2009 6 application of respondent No.1 for electric connection as per instructions of the Board so that in future Board may not face any court case. The petitioners also referred to letter dated 12.3.2008 from the Executive Engineer Sub Division 2, Bhogpur pointing out that the release of connection was disputed by the petitioners and therefore, 'no objection certificate' be submitted. The contention of the learned counsel for the petitioners was that even though the petitioners did not give 'no objection certificate' still the electric connection was sanctioned. This plea of the petitioners deserves to be rejected. Learned trial court rightly observed that Sarpnach of Gram Panhayat had granted necessary permission and furthermore other residents in the locality had no objection to grant of electric connection. Merely because the petitioners failed to give 'no objection certificate' could not be a prima facie ground to deny the electric connection as contended. The learned counsel for the petitioners thereafter placed reliance on the judgment of Hon'ble Madhya Pradesh High Court in the case of Dhannalal and another Vs. Thakur Chittarsingh Mehtapsingh AIR 1959 Madhya Pradesh 240 to contend that running of flour mill creates nuisance and therefore, the petitioners had an actionable claim against respondent No.1. The impugned order, therefore, cannot be sustained. Hon'ble Madhya Pradesh High Court in the case referred to above was pleased to lay down as under:- “15. The principles deducible from the cases discussed and C.R. No. 4859 of 2009 7 referred to above may be summarized thus:- (1) Constant noise, if abnormal or unusual, can be an actionable nuisance, if it interferes with one's physical comforts. (2) The test of a nuisance causing personal discomfort is the actual local standard of comfort, and not an ideal or absolute standard. (3) Generally, unusual or abnormal noise on defendant's premises which disturbs sleep of the occupants of the plaintiff's house during night, or which is so loud during day time that due to it one cannot hear ordinary conversation in the plaintiff's house, or which cannot allow the occupants of the plaintiff's house to carry on their ordinary work is deemed to be a noise which interferes with one's physical comforts. (4) Even in the noisy locality, if there is substantial addition to the noise by introduction of some machine, instrument, or performance at defendant's premises, which materially affects the physical comforts of the occupants of the plaintiff's house, then also the noise will amount to actionable nuisance. (5) If the noise amounts to an actionable nuisance, the defence that the defendant is making a reasonable use of his own property will be ineffectual. No use of one's property is reasonable if it causes substantial discomfort to other persons. “If a man creates a nuisance” said Kekewich, J. in Attorney C.R. No. 4859 of 2009 8 General V,. Cole & Son. 1901-1 Ch.205 at p.207. “He cannot say that he is acting reasonably. The two things are self contradictory.” (6) If the defendant is found to be carrying on his business so as to cause a nuisance to his neighbours, he is not acting reasonably as regards them, and may be restrained by injunction, although he may be conducting his business in a proper manner and according to rules framed in this behalf either by the Municipality or by the Government. The latter defence can be effective in a case of public nuisance, but not in that of a private nuisance. (7) If an operation on the defendant's premises cannot by care and skill be prevented from causing a private nuisance to the neighbours, it cannot be undertaken at all, except with the consent of those injured by it. (8) The right to commit a private nuisance can, in certain circumstances, be acquired either by prescription or by the authority of a statute.” The learned counsel for the petitioners also placed reliance on the judgment of Hon'ble Allahabad High Court in the case of Radhey Shiam Vs. Gur Prasad Serma and another AIR 1978 Allahabad 86, wherein Hon'ble Allahabad High court followed the judgment of Hon'ble Madhya Pradesh High Court in the case of Dhannalal and another Vs. Thakur Chittarsingh Mehtapsingh (supra). C.R. No. 4859 of 2009 9 Learned counsel for the petitioners also placed reliance on the judgment of this court in the case of Ujagar Singh Vs. Karnail Singh 1994 (1) Civil Court cases 532 to contend that injunction can be granted to stop nuisance. In the cited case this court was pleased to regulate the running of machine up to 5 PM only. The contention of the learned counsel for the petitioners, therefore, was that the impugned orders cannot be sustained. On consideration of matter, I find no force in the contentions raised by the learned counsel for the petitioners. In the present case, it is not in dispute that the flour mill is being run by respondent No.1 for the last one year with the aid of tractor. Learned lower appellate court was right in holding that by grant of electric connection noise and pollution was likely to come down and would not enhance the same, therefore, it could not be said that the petitioners had a prima facie case to restrain respondent No.2 from granting electric connection to respondent No.1 on account of nuisance. Relief claimed against respondent No.2, therefore, was on the face of it misconceived as grant of electric connection was not to enhance noise and pollution, in any way. As regards the relief claimed against respondent No.1 is concerned, suffice it to say that there is no specific pleading in the plaint making out a case of such nuisance which can entitle the petitioners to seek temporary injunction. Law laid down in the authorities relied upon by the petitioners cannot be disputed. In case the plaintiffs are to prove nuisance C.R. No. 4859 of 2009 10 by leading evidence as held in the judgments relied upon by the petitioners, the suit can certainly succeed but for the purpose of application under Order 39 Rules 1 and 2 of the Code the petitioners were required to prove prima facie case. Once it was not in dispute that the flour mill was being run for the last one year; that too with a tractor, and the gram panchayat and residents did not object to running of the mill, it leaves no manner of doubt that the petitioners have no prima facie case nor balance of convenience could be said to be in favour of the petitioners. Rather respondent No.1 was to suffer irreparable loss and injury in case injunction was granted in the absence of material and sufficient evidence on record showing therein that the running of flour mill was causing nuisance to the extent that it was intolerable for the plaintiff/petitioners to live in the locality or that it was disturbing their health etc. The petitioner by way of interim relief cannot claim injunction, which is ultimate prayer in the suit. As already observed above, this opinion can only be formed after the parties lead their evidence in proof of their respective claims. Orders of the learned courts below, therefore, do not call for any interference by this court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. No merit. Dismissed. However, it is made clear that nothing stated above be taken to be an expression of opinion by this court on merits of the case. (Vinod K.Sharma) 27.08.2009 Judge rp