Punjab-Haryana High Court
Bhopal Singh And Ors. vs Chatter Singh And Ors. on 12 August, 1999
Equivalent citations: AIR2000P&H34, (1999)123PLR448, AIR 2000 PUNJAB AND HARYANA 34, (2000) 1 CURLJ(CCR) 5, (2000) 1 LANDLR 614, (2000) 1 ICC 82, (1999) 123 PUN LR 448, (1999) 4 RECCIVR 256
Author: Swatanter Kumar
Bench: Swatanter Kumar
ORDER Swatanter Kumar, J.
1. Chattar Singh along with 36 others plaintiffs brought a suit for permanent prohibitory and mandatory injunction against Bhopal Singh and others including Municipality, Karnal through its President. Along with the suit they filed an application under Order 39, Rules 1 and 2, CPC which was allowed by the learned Civil Judge (Junior Division), Karnal vide his order dated 5-4-1999. The application was allowed and defendants were restrained from carrying on work of shoe manufacturing unit till they are granted licence or permission by the competent authority i.e. defendant itself-Munici-pality, Karnal, in the suit. This order of the learned trial Court was unsuccessfully assailed in appeal by the defendants in the suit. The learned Additional District Judge, Kamal, vide his order dated 28-5-1999 found no merit in the appeal and dismissed the same with costs. Aggrieved from the said order the defendants in the suit (petitioners herein) have preferred the present revision before this Court.
2. The main contention raised on behalf of the petitioners is that the Sub-Divisional Magistrate in the proceedings under Section 133 of the Criminal Procedure Code had found as a matter of fact by site inspection that no nuisance was being created by the petitioners and as such had dropped the proceedings. It is further argued that on these premises alone the learned Courts below have fell in error of jurisdiction in granting the injunction prayed for to the respondents. Learned counsel for the petitioners stated that nothing like manufacturing activity was being carried out in the premises except stitching, tailoring and use of small hammer for providing iron cover to the holes in the shoes for tying laces. He also submitted that no permission is called for from any authority.
3. While rebutting these arguments, learned counsel for the respondents contended that the petitioners ought to seek permission from the Municipality under Section 129 of the Haryana Municipal Act, and the bye-laws framed thereunder. Without seeking such a permission the respondents, in law, much less in equity, can be permitted to carry on any commercial activity. It is the statement on behalf of the respondents that the plaintiffs by their own conduct are estopped from running a factory or commercial activity in the premises in dispute,
4. The suit for injunction was based on the facts that the factory of the respondents is situated on plot No. 15/57, Sant Nagar, Karnal, owned by the defendant No. 2. On 12-8-1997 the private defendants in the suit started raising construction over the plot to raise a shed for establishing the shoe manufacturing factory. The plaintiffs had earlier filed a suit for injunction restraining the defendants from raising any illegal construction and for carrying on the commercial activity. On the statement given by the defendants, the suit was disposed of. Now again, the commercial activity was being carried on by the petitioners. There were 15 electric sewing machines run by motors or hand driven. Hammers were being used. There were inflammable chemicals being used for completing the shoe covers. This all was causing great nuisance by making noise, emanating obnoxious smell and fear of fire. There were more than 40 employees working in shifts and which is also causing obstruction to their free passage of the street and whenever somebody objects, the employees create a nuisance and beat the respondents of the locality. It was stated that the entire locality is meant for residential purposes under the Municipal Laws.
5. The defendants contested the suit. They denied the averments made in the plaint and referred to the prder of the Sub-Divisional Magistrate under Section 133 of the Criminal Procedure Code. They further denied that any foul smell or noise was being caused by them. They specifically contended that they were carrying activity only of stitching and making of the shoe covers without infringing any rights of any of the respondents.
6. During the course of hearing of this revision, this Court had passed an order on 6-7-1999 appointing a local commissioner in the following terms :--
"Issue notice to show cause why the petition be not admitted. Learned counsel appearing for the caveators accepts notice and prays for time to argue the matter in detail.
It is agreed between the learned counsel for the parties that in order to verify the basic contention raised on behalf of the present petitioners that they are doing no other activity in the premises except cutting and stitching the leather, cloth and rexin for the purposes of providing job of the shoes to the manufacturers and further contention that no process whatsoever either of colouring treatment or use of chemical for the purpose of preparing the semi product of rexin is being used or not, a Local Commissioner is appointed to see the premises and find out the position existing on the spot. In addition thereto the Local Commissioner would also check up if there is a possibility of any foul smell or nuisance being committed by running the admitted activities.
In view of the agreement between the learned counsel for the parties, Mr. B.S. Jaiswal, Advocate, who is present in Court, is appointed as Local Commissioner to go to the premises and submit his report within three days from today. The Local Commissioner will not be obliged to serve upon any of the parties notice of the date and time of visit of the premises, which is fixed in the presence of learned counsel for the parties. The Local Commissioner will visit the premises at 2.00 P.M. on 8-7-1999. Parties are at liberty to be present along with their counsel or duly authorised persons. Absence of either of the parties will not prevent the Local Commissioner to carry out its commission. The agreed fee of the Local Commissioner is Rs. 5,000/- in addition to the expenses incurred for travelling etc. which shall be shared equally by both the parties."
The Local Commissioner submitted his report to this Court. The following portions of the report submitted by the local commissioner can be appropriately referred at this stage :--
"That thereafter, I proceeded to inspect room No. 3 of the premises where the work was going on and seven persons/workers were present who were working on different machines as well as on miscellaneous works like packing and setting. They were Shri Surinder, Dinesh, Raj Kumar, Laler, Radhey Shyam, Vipan Kumar, Rishu Pal. Then I asked one worker to show the way of working, who told me that the Liberty Footwear Limited, company supplies the material i.e. rexin, cloth, piping etc. to them/their company. Then they cut the rexin, cloth and piping according to the respective sizes and thereafter they are stitching on the machines. After stitching, their material is sent to other persons, who are deployed for taping on the machines and then sent to winding machines. Thereafter, the material is sent to hammering process. The material after it is ready is packed and returned to the company Liberty Footwear Limited."
That there is proper space for parking cycles/scooters inside the premises which is shown in the photograph. Copy of the photograph is annexed as annexure A-12."
7. The learned local commissioner noticed mild noise nearly 10 feet away from the wall of the relevant room and found no foul smell. The learned counsel for the respondents pointed out that in fact the unit/factory was lying closed for a considerable time and all the machines, leather goods, adhesive material and other raw-material had been shifted to old Railway Road, Green Hotel, Karnal. He contended that it was only when the local commissioner was to arrive that few of the machines were brought in there and thus the commissioner could not find any foul smell and hear real noise committed by the regular commercial activity being run of the factory at the time of institution of the suit by the respondents. According to him because of the injunction orders passed by the learned Courts below they had shifted to the above place and were actually carrying on the business there.
8. In the reply filed to the injunction application on behalf of all the respondents except the Municipal Committee, it is stated that the Municipality, Karnal, has already issued a notice to the petitioners asking them to close the manufacturing unit in the plot in question for which building plans were got sanctioned for constitution of residential building. In paragraph No. 5 of the reply it is stated as under :--
"The present revision petition as also the present application must fail on this ground that the owner of the plot i.e. Smt. Manjula the revision-petitioner and her husband Bhopal Singh had given an undertaking in the Court of Shri Mewa Singh Civil Judge (Junior Division) Karnal in an earlier suit for grant of permanent injunction that they shall not carry on any business or manufacturing process in the plot in question. After having led the Court as also the plaintiff-respondents to believe that Smt. Manjula and Bhopal Singh do not intend to set up any factory in this residential plot and on the basis of which undertaking the plaintiff-respondents have withdrawn the earlier suit, the present revision petitioners cannot be permitted to run their shoe manufacturing factory in the plot in question. Smt. Manjula and Bhopal Singh are liable to be punished for having committed a Contempt of Court for having violated the undertaking given by them in the previous suit."
9. The above facts are not disputed by the learned counsel for the petitioner. However, it is contended that the notice issued by the Municipality for closure is being contested before the learned District Judge, but the operation of the same has not been stayed as yet. It is also not disputed that the suit was filed and on the statement given by the present petitioners that they would not carry out the commercial activity, the suit was disposed of. Certified copy of the statement recorded of the present petitioner Smt. Manjula and her counsel dated 10-9-1997 has been placed on record. According to this statement it is clear on record that the petitioner had undertaken not to start or raise construction for any factory or manufacturing unit and it was also stated that leather processing would not be carried out in the said premises. In these circumstances this Court is unable to see any error of jurisdiction in the orders passed by the learned Courts below.
10. The principle of acquiescence cannot be applied against the respondents herein because they had taken up the issue right at the very outset i.e. the building construction was raised for factory purposes. These petitioners have raised protest and taken recourse to legal proceedings at the very initial stage. On the other hand, the petitioners herein had frustrated the legal proceedings by suffering a statement on 10-9-1997. The withdrawal of the suit and its settlement was nothing but a necessary consequence of the statement made by the petitioners on/10-9-1997, Having taken benefit before the Court in furtherance to the statement dated 10-9-1997, having got site plan sanctioned for residential purposes and raising construction on the said basis, the petitioners herein would be estopped from pleading to the contrary. If the report of the local commissioner is taken to be correct even then the petitioners herein cannot be permitted to retreat their statement before the Court of competent jurisdiction in previous legally instituted proceedings.
11. It has also not been disputed before this Court that the colony is a residential colony and it will be an obvious infringement of the Municipal Law if in residential premises, the commercial activities of this nature are permitted to be carried on. The emphasis on the premises of equity by the learned counsel for the petitioner is again misplaced. It is a settled canon of law, that equity follows the law. Equity would tilt in favour of law and not against violation thereof. To claim equity, the petitioners must explain their above referred previous conduct which apparently they have failed. Thus, neither the principle of acquiescence or equity comes to the aid of the petitioners in the present case.
12. Learned counsel for the petitioners referred to the judgment of this Court in the case of Sohan Lal v. Surinder, (1995) 1 Pun LR 759, to argue that the report of the local commissioner is favourable to the petitioners and\ no nuisance is being created by them and as such the injunction granted to the respondents herein ought to be vacated. In this case, admittedly the shop was being run in a commercial area and it was the next shopkeeper who had raised complaint about running the machine in the adjacent shop. The controversies alike the present, did not arise in that case probably both shops were working with due permission of Municipality and Shops Establishment Act. Thus, that case, on facts and law, has no application to the present case.
Further more, I have already noticed that the report of the local commissioner does not depict the true state of affairs as admittedly the factory was lying closed for quite sometime. As per the respondents, the factory had been shifted to old Railway Road, Green Hotel Karnal, while according to the petitioners, the respondents were not permitting them to function more particularly in view of the injunction orders passed by the learned Courts below.
Learned counsel for the petitioners relied upon the case of Ramesh v. Pawan Kumar, (1998) 3 Civil CC 130 (Punj & Har) to argue that report of local commissioner forms an acceptable basis for passing of interim order or directions. There could hardly be any dispute to this proposition of law. But this proposition has to be looked into and decided on the merits of each case. The observance of the Court in Pawan Kumar's case (supra) in fact go a long way against the pleaded case of the petitioner. The following observations of the Court would be relevant to be referred at this stage :--
"In the present day if a factory is run in a residential colony or even in semi-residential colony and such running the machines becomes a continuous source of irritation, nuisance or a threat to the adjacent properties, the plaintiff(s) would be at liberty to approach the Court for seeking appropriate relief. Such an act on the part of the defendant would give rise to an actionable cause in favour of the plaintif(s).
Noise is not a nuisance simpliciter, but in given circumstances can cause health hazards. The effect of a noise in excess of the permissible parameters is specified under the Environment (protection) Act, 1986. Such standards have been specified under the rules framed under Section 6 of this Act. The quality of life can be adversely affected by a noise pollution as it is bound to affect the sleep, hearing, manner of communication and would obviously affect the mental and physical health and working efficiency of the persons. It is strange matter that the concerned authorities whose primary obligation is to ensure health and prevent all possible kind of pollutions have ignored the basic need for controlling the pollution.
It is conceded before me that the defendant does not have any permission from the Environmental Control Boards in relation to noise. The noise itself is actionable wrong in law and noise causing nuisance could not be taken outside the ambit or circumference of actionable wrongs. It is an implied obligation upon the defendant to prevent noise pollution even if he has permission from the competent authorities to run a factory in the area in question where the plaintiffs and others have their residential houses. Industrial development must no way be permitted to cause pollutions or nuisance for a common citizen."
It is true that as per the local commissioner, at the time of his visit, some activity was being carried on in the premises. Notwithstanding the version of shifting, put forward by the respondents herein, even if I believe the version of the petitioner then there was apparent violation of the order of injunction passed by the learned Courts below as there was no specific stay granted by this Court at the time of issuance of notice of the petition or even thereafter. This conduct of the petitioners again would disentitle them from claiming the relief of injunction which is a discretionary relief to be granted on balancing the equity between the parties and in consonance with the settled principles of law.
For the reasons aforestated 1 find no merit in this revision petition. The same is hereby dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.