R.S.A. No. 627 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No. 627 of 2006 (O&M) Date of Decision: 19.01.2009 Baru Singh ...Appellant Versus The Sub Divisional Magistrate Amloh and others ...Respondents CORAM:- HON'BLE MR.JUSTICE VINOD K. SHARMA Present: Mr. Kanwaljit Singh, Sr. Advocate with Mr. Harmanjit Singh, Advocate for the appellant. Mr. H. S. Sirohi, Advocate for respondents No.3 and 4. VINOD K. SHARMA.J(ORAL) This regular second appeal is directed against the judgments and decree dated 3.8.2004 and 18.11.2005 passed by the learned courts below vide which the suit filed by the plaintiff seeking permanent injunction against the defendant-respondents has been dismissed. The plaintiff filed suit for injunction restraining the defendants from interfering in the peaceful possession and use of the Poultry Farm, opened and managed by the plaintiff at village Bhaddal Thuha and also restraining the defendants from removing or causing to remove the said R.S.A. No. 627 of 2006 (O&M) -2- Poultry Farm as detailed in the headnote of the plaint. The plaintiff claimed to be a landless labourer and for earning his livelihood had opened a Poultry farm at village Bhaddal Thuha by getting a loan to the tune of Rs.1,20,000/- from Primary Coop. Agriculture Development Bank Ltd., Amloh. The Poultry Farm is said to be running since 1996. The plaintiff claimed that defendants No.2 to 5 felt annoyed with him, and on 10.12.2000, an application was moved with defendant No.1, on the basis of the said application defendant No.1 was issuing threats to dismantle the Poultry Farm and was causing interference in the smooth working of the Poultry Farm. The plaintiff requested the defendants not to interfere but as they did not pay any heed to his request, thus, the suit. On notice having been issued, defendants No.2 to 5 appeared and contested the suit by claiming, that the suit as framed was not maintainable as defendant No.1 was taking legal action in discharge of his official duties in stopping pollution within the populated area. It was also pleaded that an official can not be restrained from discharging his official duty. It was further claimed that defendant No.2 being a Sarpanch, was bound to take legal action against the Poultry Farm which was causing pollution in residential area of the village. On merit, it was pleaded that the defendants were exercising their legal rights for removal of nuisance, which the authority are bound to remove. It was claimed that the Poultry Farm had been opened without any legal sanction. The unnecessary interference, as claimed by the plaintiff, was denied by the defendants. R.S.A. No. 627 of 2006 (O&M) -3- On the pleadings of the parties, following issues were framed by the trial Court:- “1) Whether the plaintiff was entitled to the injunction as prayed for? OPP. 2) Whether the suit is not maintainable in the present form? OPD. 3) Relief.” The learned courts below on appreciation of evidence brought on record, have recorded a concurrent finding of fact that plaintiff is not entitled for injunction. The learned Courts held that the suit seemed to have been filed, as the proceedings under Section 133 of the Code of Criminal Procedure stood initiated against the plaintiff by defendant No.1.The name of defendant No.1 was subsequently got deleted by the plaintiff but without amending the pleadings. The learned senior counsel for the appellant raised the following substantial questions of law :- 1. Whether under Section 41 of the Specific Relief Act, the appellant is entitled to injunction of his lawful right to do business and on an uncalled for obstruction by the defendants/ respondents thereupon ? 2. Whether as per the judgment of the Hon'ble Apex Court 1999(2)CCC adverse inference against the defendants / respondents should have been drawn ? In support of the substantial questions of law the learned senior counsel for the appellant contends that as the appellant has fundamental R.S.A. No. 627 of 2006 (O&M) -4- right to carry on the business, therefore, he was entitled to injunction as claimed. It is further the contention of the learned senior counsel for the appellant that in view of the stand taken by the defendants in the written statement there was no reason for the Court to dismiss the suit filed by the appellant-defendant. It is also the contention of the learned counsel for the appellant that the learned Courts below have failed to draw adverse inference against the defendants-respondent. On consideration of the matter, I find no substance in the arguments raised by the learned senior counsel for the appellant. No person in the garb of right to business can create nuisance for others. Even otherwise, the suit as framed by the plaintiff-appellant was not competent as no injunction can be granted against the authorities to restrain them from performing their statutory duty. The learned Courts below, therefore, rightly dismissed the suit filed by the plaintiff-appellant. The substantial question of law as raised, do not arise for consideration in the present case. No merit. Dismissed. (Vinod K. Sharma) Judge 19.01.2009 ashish/ 'sp'