THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.3089 OF 2011 Dated 29-11-2011 Between: Gunda Damodara Venkata Narasinga Rao. ..Petitioner. And: Sarvani Vidya Niketan, Rajeev Nagar, Srikakulam, represented by its President Pullati Nageswara Rao. …Respondent. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.3089 OF 2011 ORDER: This Civil Revision Petition is directed against the order dated 25th April, 2011 passed by the learned I Additional District Judge, (F.A.C.), Judge, Family Court- Cum-Additional District Court, Srikakulam in C.M.A.No.36 of 2006 whereby and whereunder, the petition filed by the petitioner in I.A.No.66 of 2006 in O.S.No.16 of 2006 on the file of the learned Additional Senior Civil Judge, Srikakulam seeking to grant temporary injunction restraining the respondent his family members, the kith and kin, workmen, followers and agents from ever using, commissioning, operating or functioning of Sri Venkateswara Hot Mixing Plant in the plaint schedule land, was dismissed. The petitioner herein is the defendant and the respondent herein is the plaintiff in the main suit. The parties will be referred to as arrayed before the trial Court for the sake of convenience. The plaintiff filed the suit in O.S.No.16 of 2006 seeking a declaration that the establishment and commission or operation of Sri Venkateswara Hot Mixing Plant (hereinafter referred to as the plant) in the plaint schedule land by the defendant is injurious and hazardous to the health of the inmates, and also constant disturbance in imparting education to the pupils of the institution. It is his further case that the said plant is creating pollution of air and sound. The plaintiff filed the suit for permanent injunction restraining the defendant, his family members and kith and kin, workmen, followers and agents from ever using, operating the plaint schedule land. The plaintiff is represented by its president Pullati Nageswara Rao. The plaintiff’s brief case is that the plaintiff-school was established in the year 1999 and there are about 400 students studying in the said school. A hostel is also attached to the school. The defendant installed the Plant in S.No.481 adjacent to the said school which is causing sound pollution and air pollution. The plaintiff’s specific case is that the defendant obtained permission to install the plant in S.No.620 but in fact, he had installed the plant in R.S.No.481. The plaintiff also filed O.S.No.876 of 2005 on the file of the II Additional Junior Civil Judge, Srikakulam against Gunda Dellirao, brother of the plaintiff and he sought injunction in I.A.No.1042 of 2005 in O.S.No.876 of 2005 against the brother of the defendant and the said I.A. was dismissed on the ground that it was not filed against the true owner of the Plant. The specific case of the plaintiff is that the defendant has not obtained necessary permission from the Pollution Control Board or from the Gram panchayat to install the Plant in S.No.481 and that such plant cannot be established in a residential locality particularly nearer to school. The defendant filed a counter contending that in view of the filing of the earlier suit O.S.No.876 of 2005 on the file of the II Additional Junior Civil Judge, Srikakulam, the present suit is not maintainable for the similar relief and that the defendant ought to have added the present defendant as party in the said suit. It is also his case that due to political differences, the present suit has been filed against him. The defendant’s further case is that he applied for permission to establish the Plant in S.No.481 and the permission was mainly granted for establishing in S.No.620/20 which land does not belong to the defendant. His further case is that he has installed the plant after obtaining necessary sanction from the concerned authority. The defendant followed the specifications and planting dust collection system as well as exhaust blower to control pollution. It is also contended that the school itself was established in industrially developed area by influencing the government and the other educational institutions are located at a distance from the suit locality. The defendant had specifically averred in his counter that he applied for permission to establish that the Plant in S.No.481 but the permission was mischievously granted in 600/20 and that the said land does not belong to him. Learned Additional Senior Civil Judge observed that crushing unit was established in 1999 but the school was established in the year 2000 and that the earlier suit filed by the plaintiff against the defendant was dismissed. It is further held that the plaintiff cannot seek the relief against the defendant and could have added the defendant as a party to the earlier suit and that the plaintiff obtained bank loans and his employees may lose their livelihood if injunction is ordered and holding so, dismissed the petition. Aggrieved by the same, the plaintiff carried the matter to the appellate Court and the appellate court allowed the appeal setting aside the order of the trial Court. Challenging the same, this revision has been filed by the defendant. Learned counsel for the defendant submits that the Senior Civil Judge has taken into consideration the facts and circumstances of the case and rightly observed that the school was established subsequently in the year 2000 and that the plaintiff has obtained loans from the Bank and considering the hardship, the Senior Civil Judge has rightly dismissed the application whereas the appellate Court has not considered the relevant facts. The only the point that arises for consideration is whether there are no grounds to interfere with the order passed by the appellate authority. As seen from the order passed by the Senior Civil Judge and the appellate authority, it is clear that the defendant, in his counter, categorically admitted that he had applied permission to establish the plant in S.No.481. Thus it is clear that admittedly, the defendant has no permission to establish the plant in the disputed land i.e., in S.No.620. As far as establishment of the plant is concerned, it was established in the year 2006. Of course, it appears that previously there was a crushing unit. Stone crushing unit is different from Hot Mixing Plant. Smoke will be generating from Hot Mixing plant. Therefore, as held by the apex Court in a decision reported in M.C. MEHTA vs. UNION OF INDIA AND OTHERS ([1]) that the hot mix plants should not be installed within the vicinity of IGI Airport or nearby sites not exceeding three to four kilometers range, it is observed as follows: “This is because to have a proper laying of surface the premix material has to be maintained at a very high temperature before laying it at the runways.” Therefore, merely because, there was a stone crushing unit from 1994 but it does not mean that the hot mixing plant can be established near school in S.No.620 in the year 2000 without any permission from the concerned grampanchayat or from the concerned authorities. When the defendant obtained permission to establish such plant in S.No.481, he cannot establish the plant in S.No.620. The orders of the appellate Court appears to be well reasoned and based on the material placed before it. Even if compared to hardship admittedly, the health of the children studying in the school has to be given preference over the financial loss that may occur to the defendant. Therefore, I am satisfied that the order of the appellate Court is perfectly justified and no interference is required at this stage. Accordingly, this Civil Revision Petition is dismissed. No costs. ___________________ B. CHANDRA KUMAR, J. Date: 29-11-2011 Dvs THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.3089 OF 2011 Dated 29-11-2011 [1] AIR 1999 SC 2367