Karnataka High Court
Sri Shivananda Sharma vs Smt. Shantha Nagesha Rao on 28 July, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 28TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.2731/2023 (CPC)
BETWEEN:
1. SRI SHIVANANDA SHARMA,
MEMORIAL RASHTRIYA,
VIDYALAYA DEGREE COLLEGE,
NO.17, 26TH MAIN, 36TH CROSS,
4TH BLOCK, JAYANAGAR,
BENGALURU-560 041.
REPRESENTED BY ITS SECRETARY
2. RASHTRIYAN SHIKSHANA SAMITHI TRUST,
R.V.ROAD,
BENGALURU-560 004.
REPRESENTED BY ITS SECRETARY
... APPELLANTS
(BY SRI SHARATH GOWDA G.B., ADVOCATE)
AND:
SMT. SHANTHA NAGESHA RAO,
AGED ABOUT 85 YEARS,
W/O. LATE NAGESHA RAO,
NO.1007, 26TH MAIN,
4TH BLOCK, JAYANAGAR,
BENGALURU-560 041,
REPRESENTED BY HER GPA HOLDER,
SRI. KUMARASWAMY B.N.,
AGED ABOUT 67 YEARS,
S/O. LATE NAGESHA RAO
2
SINCE DECEASED REPRESENTED BY HER LRS.
1. SRI B.N.KUMARASWAMY
AGED ABOUT 69 YEARS
S/O. LATE B.NAGESH RAO
2. SRI B.N.LOKESH
AGED ABOUT 66 YEARS
S/O. LATE B. NAGESH RAO
3. SMT. B.N.VEENA
AGED ABOUT 58 YEARS
W/O. SRI M.R.RANGARAJU
R/AT NO.119, 5TH MODEL HOUSE
STREET, BASAVANAGUDI
BENGALURU-560 004.
BOTH R1 AND R2 ARE
RESIDING AT NO.1007
26TH MAIN, 4TH 'T' BLOCK
JAYANAGAR
BENGALURU-560 041.
4. BRUHAT BENGALURU
MAHANAGARA PALIKE,
N.R. SQUARE
BENGALURU-560 002.
REPRESENTED BY ITS
COMMISSIONER.
... RESPONDENTS
(BY SRI ABHINAV R., ADVOCATE C/R1 TO R3)
THIS M.F.A. IS FILED U/O.43 RULE 1(r) R/W. SECTION
151 OF CPC, AGAINST THE ORDER DT.01.03.2023 PASSED ON
I.A.NO.1 IN O.S.NO.3213/2019 ON THE FILE OF THE III
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY, (CCH NO.25), ALLOWING IA NO.1 FILED U/O.39 RULE 1
AND 2 R/W. SECTION 151 OF CPC.
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THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.07.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned counsel for the respondents.
2. This appeal is filed under Order 43, Rule 1(r) read with Section 151 of C.P.C. challenging the order dated 01.03.2023 passed in O.S.No.3213/2019 on the file of the III Additional City Civil and Sessions Judge, Bengaluru City (CCH No.25), allowing I.A. No.1 filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. granting an order of injunction against the defendants.
3. The factual matrix of the case of the plaintiffs before the Trial Court is that the plaintiffs had filed the suit against the defendants for permanent injunction in which I.A.No.1 is filed for restraining the defendant Nos.1 and 2, men agents and such other persons or claiming through them in any manner operating the Sewerage Treatment Plant installed by the defendants in schedule 'A' property.
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4. In support of the application, an affidavit is sworn to by the power of attorney holder that the plaintiffs are the absolute owners in possession and enjoyment of the suit schedule property. The property belonging in which the defendants are in occupation lies towards western side of his property who are running some educational institutions in schedule 'A' property, in which the campus comprises of 5 floors. In the setback area on the eastern side of the schedule 'A' property, the defendants have illegally set up a Sewerage Treatment Plant by violating the rules and regulations pertaining to the installation, commissioning and running of Sewerage Treatment Plant. Having installed and running Sewerage Treatment Plant, plaintiffs have been put to immense hardship, injury, loss and constant foul smell emanating from it and huge pipes are installed to run the plant. On one occasion on account of the pipe having burst, faucal matter was thrown and spread across the property. Hence, the plaintiffs will be put to hardship and inconvenience and it is prevented from enjoying the schedule property. After several requests, defendants are least bothered of infringement of their rights. The balance of 5 convenience lies in their favour and in granting an interim order. If the application is not allowed, the plaintiffs will be put to great hardship and loss which cannot be compensated in any means.
5. This application was resisted by the defendants by filing written statement along with a memo to consider the written statement as objections to I.A.No.1. In the written statement, it is contended that the averments made in the plaint are false and the very suit itself is not maintainable and the same is liable to be dismissed. It is contended that BWSSB and KSPCB have passed notification and circular stating that all educational institutions measuring more than 5,000 square meters shall establish Sewerage Treatment Plant in their premises. Therefore, BWSSB and KSPCB are just and necessary parties to the suit. It is contended that the second defendant is a registered Trust established in the year 1940 by late Shivananda Sarma and it is the fastest growing institution in the State, where 16,000 students are studying and the first defendant is one such institution established by the second defendant in the year 1982. Further, BDA authority leased the suit schedule 'A' property to the second defendant for a period of 6 30 years vide registered lease deed dated 03.01.2009 and in first defendant's college, more than 2,500 students are studying. The entire suit schedule 'A' property has been developed by the second defendant by putting up buildings for educational institutions and there was no vacant space available for establishing Sewerage Treatment Plant, except on the eastern side of suit schedule 'A' property and have established Sewerage Treatment Plant in terms of the gazette notification and circular. It is also contended that the water coming out of the Membrane Bio Reactor Technology will be filtered up to 0.12 to 0.4 microns and will be free from e-coli, colour and odour. This water can be safely used for flushing, irrigation, floor washing and ground water recharge and it does not give any odour or foul smell while it ensures continuous operation. The suit has been filed with a sole intention of causing hurdles in the smooth administration of the defendant Nos.1 and 2. Hence, prayed the Court to dismiss the application.
6. The Trial Court, having considered the pleadings and also the contents of the written statement, formulated the points 7 for consideration whether the plaintiffs have made out a prima facie case for grant of order of an ad-interim injunction on I.A.No.1, whether there is any balance of convenience and the same lies in favour of the plaintiffs and whether the plaintiffs will be put to irreparable loss and hardship, if ad-interim injunction order is not granted.
7. The Trial Court, having considered the grounds urged in the suit, written statement, the application and also the affidavit and the contentions of the respective parties, considering the guidelines in respect of Sewerage Treatment Plant issued by KSPCB dated 01.03.2021, comes to the conclusion that the plaintiffs have made out a prima facie case and balance of convenience lies in favour of the plaintiffs and if the injunction order is not granted, it will cause nuisance to the plaintiffs and the very contention that the appellants-defendants are not having any other space, except the space where they have installed the Sewerage Treatment Plant cannot be accepted and installation of Sewerage Treatment Plant is against the said injunction. Hence, allowed the application restraining the 8 defendant Nos.1 and 2 in any manner operating the Sewerage Treatment Plant. Hence, the present appeal is filed before this Court.
8. The main contention urged by the appellants- defendants in this appeal is that the Trial Court failed to appreciate that there is no prima facie case in favour of the plaintiffs and also failed to take note of balance of convenience and in fact, these aspects have not been discussed by the Trial Court while rendering the impugned order. The counsel also in his argument would contend that the Trial Judge failed to appreciate that there are more than 2,500 students studying in the first appellant's college and suit schedule 'A' property has been completely developed by the second appellant by putting up a building for the purpose of educational institution and also residential quarters for the staff of the first appellant. Therefore, the appellants had to install Sewerage Treatment Plant at the present location after obtaining the requisite permission from BWSSB and the second respondent and without appreciating the same, the learned Judge has committed an error in passing such 9 an order. It is also contended that the Trial Judge failed to appreciate the fact that these appellants have established Sewerage Treatment Plant in terms of the gazette notification and circulars and have used latest technology available while establishing Sewerage Treatment Plant i.e., Membrane Bio Reactor Technology.
9. It is specifically contended that the water coming out of Membrane Bio Reactor Technology will be filtered up to 0.12 to 0.4 microns and will be free from e-coil, colour and odour. This water can be safely used for flushing, irrigation, floor washing and ground water recharge. The advantages of using Membrane Bio Reactor Technology is that it is not only absolutely safe, but also, it does not give out any odour or foul smell while it ensures continuous operation. It is contended that the Government of Karnataka vide gazette notification bearing No.FEE316 EPC 2015 dated 19.01.2016 noted that, upon inspection and monitoring by the KSPCB, revealed that there was deterioration of water quality in the lakes of Bangalore on account of discharging of untreated waste water to the 10 rajakaluves, tanks and lakes in the urban area and discharge oils and grease from industrial activity, sewage and garbage have accumulated in sewer lines and some parts of lakes. For this reason, it was recommended that Sewerage Treatment Plant shall be installed in group housing projects, commercial establishments and such other institutions to prevent pollution of water body. The counsel also would vehemently contend that in view of the circular dated 04.06.2019 and also notification dated 02.02.2018 issued under Regulation 4A of Bangalore Sewage Regulations, it is made mandatory that all buildings of educational institutions measuring 5,000 square meters and above shall establish Sewerage Treatment Plant in unsewered areas, if the water is supplied by the BWSSB and in view of the same, Sewerage Treatment Plant is installed.
10. It is also contended that entire suit schedule 'A' property has been developed by the second defendant by putting up buildings for educational institutions and for residential quarters for staff and there was no vacant space available for establishing Sewerage Treatment Plant, except on the eastern 11 side of the suit schedule 'A' property. Hence, the same is established in terms of the circular. The counsel also would vehemently contend that the very suit itself is not maintainable and documents of Annexures-B, C and D clearly disclose the fact that the direction in the circulars has been complied with and inspite of several citations being produced before the Trial Court, the same has not been discussed by the Trial Court. The counsel also would vehemently contend that, when the suit was set down for cross-examination of P.W.1, instead of cross-examining the P.W.1, an application is filed and impugned order has been passed. The counsel also would vehemently contend that the Civil Court has no jurisdiction to pass such an order.
11. The counsel also would vehemently contend that, there is a bar under Section 58 of the Water (Prevention and Control of Pollution) Act, 1974, which reads as hereunder:
"58. Bar of jurisdiction.- No civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an appellate authority constituted under this Act is empowered by or under this Act to determine, and no injunction shall be 12 granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act".
12. The counsel also would vehemently contend that the Court can take cognizance of the offence under Section 49 of the Water (Prevention and Control of Pollution) Act, 1974, which reads as hereunder:
"49. Cognizance of offences.- [(1) No Court shall take cognizance of any offence under this Act except on a complaint made by -
(a) a Board or any officer authorised in this behalf by it; or
(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Board of officer authorized as aforesaid, and no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act].
13. The counsel also brought to notice of this Court Section 25 of the Water (Prevention and Control of Pollution) 13 Act, 1974 i.e., Restrictions on new outlets and new discharges and brought to notice of this Court sub-section (3) that the State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub- section (1) and in making any such inquiry shall follow such procedure as may be prescribed.
14. The counsel also brought to notice of this Court Section 26 of the Water (Prevention and Control of Pollution) Act, 1974 i.e., provision regarding existing discharge of sewage or trade effluent and also Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 i.e., appeals, wherein an appeal provision is made making it clear that any person aggrieved by an order made by the State Board under Section 25, Section 26 or Section 27 may, within thirty days from the date on which the order is communicated to him, prefer an appeal to such authority. Hence, the counsel would vehemently contend that the Civil Court ought not to have granted the relief of injunction by entertaining the suit. 14
15. The counsel, in support of his argument, he relied upon the National Green Tribunal Act, 2010 and brought to notice of this Court Section 15 of the Act, i.e., with regard to relief, compensation and restitution in respect of restitution of the environment for such area or areas, as the Tribunal may think fit. Hence, it is contended that the Trial Court, inspite of bar under the Water (Prevention and Control of Pollution) Act, 1974 as well as with regard to the jurisdiction as provided in the National Green Tribunal Act, 2010 in respect of where substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and such question arises out of the implementation of the enactment specified in the Schedule 1, the Trial Court ought not to have granted the relief.
16. The learned counsel for the appellants-defendants, in support of his argument, relied upon the judgment of the Gujarat High Court in LIYAKAT MAHMAD CIRCLE VS. STERLING SEZ AND INFRASTRUCTURE LIMITED reported in 2013 SCC ONLINE GUJ 5189, wherein a question was involved 15 whether suit of the appellants is barred by National Green Tribunal (NGT) Act, 2010 which is discussed in Para No.2 and so also discussed with regard to the bar of jurisdiction under Section 29 of the National Green Tribunal (NGT) Act, 2010 and brought to notice of this Court Para No.6.1 of the judgment, with regard to the issue involved i.e., a substantial question relating to environment, wherein it is held that, in civil case which relate to enforcement of any legal right would become a dispute under Section 14 and which shall have to be dealt with and decided by the Tribunal alone.
17. The counsel also relied upon the judgment of the Madras High Court in M/S. AMMAN OIL MILL AND REFINERIES AND ANOTHER VS. M. SARADHAMBAL AND OTHERS in C.R.P. (PD). NO.2706 OF 2014 and M.P.NO.1 OF 2014 pronounced on 12.06.2019 and brought to notice of this Court Para No.5, wherein it is discussed with regard to the suit having been filed for the reliefs mentioned therein and also discussed with regard to Section 58 of the Water (Prevention and Control of Pollution) Act, 1974 i.e., the bar of jurisdiction and 16 also with regard to bar of jurisdiction Section 46 of the Air (Prevention and Control of Pollution) Act, 1981. The counsel also brought to notice of this Court Para No.22 of the judgment, wherein it is discussed with regard to the disputes which the Tribunal can settle and also with regard to the jurisdiction of the Tribunal and Section 15 of the National Green Tribunal Act, 2010 i.e., relief, compensation and restitution. In Para No.22 of the judgment, the Court having considered the provisions of the National Green Tribunal Act, 2010, held that it is evident that the jurisdiction of the Civil Court is barred. The counsel referring these judgments would vehemently contend that when there is a clear bar, the Trial Court ought not to have granted the relief as sought in I.A.No.1. Hence, prayed the Court to set aside the order.
18. Per contra, learned counsel for the respondents- plaintiffs in his argument would vehemently contend that the Trial Court discussed in detail, particularly with regard to condition No.4 at Para No.10 of the judgment. The counsel also would contend that, while installing Sewerage Treatment Plant, there should be a plan and the installation of Sewerage 17 Treatment Plant by the defendants is not as per the norms of KSPCB. The counsel would further contend that, in the written statement they appellants-defendants have not taken any defence that the Court has no jurisdiction and nothing is averred in the written statement as regards the bar is concerned and they have not filed any objections to I.A.No.1 and only filed memo adopting the written statement as objections to I.A.No.1. The counsel would vehemently contend that if any order is passed under Sections 25, 26 and 27 of the Water (Prevention and Control of Pollution) Act, 1974, there is an appeal provision under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974. The suit is filed by a private party when the civil right was violated by installing Sewerage Treatment Plant which amounts to violation of civil right of a party. Hence, the very contention that the suit itself is not maintainable cannot be accepted.
19. The counsel also would vehemently contend that the very National Green Tribunal Act, 2010 is not applicable and the same is with regard to environment. The counsel would 18 vehemently contend that the guidelines issued by the BWSSB has not been followed and no certificate is produced for having complied with the guidelines issued for establishment of Sewerage Treatment Plant Guidelines and hence, the appellants- defendants cannot set up a Sewerage Treatment Plant in a setback area. The counsel also brought to notice of this Court Section 269 of the BBMP Act and also Building Bye-laws of 2008. The counsel also would contend that though the suit was filed in 2019, due to Covid-19, application was not pressed but, before filing the suit, legal notice was issued and the same is also stated in Para No.7 of the plaint and there was no sanction by the concerned authority to install Sewerage Treatment Plant and in order to dispose of the canteen waste, the Sewerage Treatment Plant is set up. Hence, the appellants-defendants cannot contend that Sewerage Treatment Plant is installed as per the guidelines.
20. The learned counsel for the respondents, in support of his argument also filed written submissions contending that jurisdiction of the Civil Court is barred in respect of any matter 19 which an Appellate Authority constituted under this Act is empowered by or under this Act to determine and consequently, no injunction can be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The Appellate Authority under the Water (Prevention and Control of Pollution) Act, 1974 and to which an appeal lies is provided under Section 28 of the said Act. The appeals are provided against any order made by the State Board under Section 25, 26 or 27 of the Act. In the present case, no order is made either under Section 25, 26 or 27 of the Act. In other words, no action that is taken under the aforesaid provisions is the subject matter before the Civil Court or is challenged before the Civil Court. Consequently, Section 58 which bars the jurisdiction of the Civil Court is not applicable to the case on hand.
21. The counsel also in his written submission contended that, in so far as the NGT Act is concerned, again, there is no bar under Section 29 of the said Act. The jurisdiction of the Civil Court under the NGT Act is barred in the matters which the 20 Tribunal is empowered to determine in its Appellate jurisdiction; any dispute or any question relating to any claim in relation to compensation or restitution of property damaged or environment damage; no injunction can be granted in respect of any action taken or to be taken in respect of any settlement of dispute or claim for granting any relief or compensation. Section 14 of the NGT Act lays down the jurisdiction of the Tribunal. If any substantial question relating to environment is involved and arises out of the implementation of the seven statutory enactments specified in Schedule-I, such civil cases will be heard and decided by the Tribunal. Section 15 of the NGT Act provides for relief, compensation and restitution in relation to victims of pollution and in case their property is damaged. Such is not the case in the present context. The suit that is filed before the Civil Court is to decide the personal rights of an individual in relation to the nuisance caused by the defendants/appellants. Section 16 of the NGT Act prescribes the Appellate jurisdiction of the Tribunal. The suit is not instituted in relation to any order which the Tribunal has to decide under the Appellate jurisdiction. The counsel would vehemently contend that Civil Court has got the 21 jurisdiction to try the suits of all civil nature under Section 9 of C.P.C. and there is a presumption that Civil Court has jurisdiction. Ouster of jurisdiction is not to be readily inferred. In case the personal rights of a person are affected or an injunction is sought in relation to any nuisance caused by the defendant and such a suit is filed, the suit would be perfectly maintainable before the Trial Court.
22. The counsel also would vehemently contend that the defendants before the Trial Court have not taken any such contention in the written statement and now, they cannot contend that suit is barred by law and for the first time, the said contention is raised before this Court and now, cannot find fault with the order of Civil Court granting an order of temporary injunction. The appellants have not made out any exceptional case before the Appellate Court to interfere with the order of temporary injunction and nuisance being a continuous cause of action, an order of temporary injunction must be granted and continued. Hence, this Court cannot interfere with the order of the Trial Court.
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23. The counsel, in support of his argument, relied upon the judgment of the Apex Court in THRESSIAMMA, ALIAS VALSAMMA VS. SEBASTIAN MATHEW, ALIAS SUNNY reported in AIR 2002 KER 1 and brought to notice of this Court Para Nos.2, 3 and 4 and also Para Nos.8 and 9, wherein the Apex Court has discussed with regard to the maintainability of the suit and in Para No.9, it is observed that, if law permits, it is open to the appellant to challenge the same before the concerned authority. Regarding nuisance, as pointed out above, the version of the appellant would be that on account of the construction of the factory and running the same for manufacturing the cement cavity box, the air will be polluted, it will cause so many diseases to the members of her family and the neighbours, it will affect the education of the children studying in the educational institutions near the locality, the sound caused by the running of the factory will impair the hearing of the appellant and other neighbours, etc. Even if these facts are accepted for the sake of arguments, they do not satisfy the requirements for instituting a suit at this stage as held by the Supreme Court in the above said decision. Therefore, when 23 an actionable nuisance arises, that is to say, a cause of action erupts on account of the manufacturing of the cement cavity box or construction of the factory, as per the law laid down in KULDIP SINGH's case (AIR 2000 SC 1410), a suit will lie.
24. The counsel also relied upon the judgment in MATHEW LUKOSE & OTHERS VS. KERALA STATE POLLUTION CONTROL BOARD & OTHERS reported in (1990) 2 KLJ 717 and brought to notice of this Court Para Nos.8, 9, 11, 14 and 22 and in Para No.22 of the judgment, the Court comes to the conclusion that Article 21 comprehends the right to healthy environment, and the duty in the State to protect these rights. The magnitude of the problems caused by pollution also have been noticed. To eliminate pollution, industries cannot be eliminated. The competing claims, must balance at the point, where the outer limit of pollution touches the tolerance levels or safety limits. If it crosses that point, it cross the rubicon and the activity generating pollution is liable to be interdicted. When the degree of pollution crosses the tolerance limits, it invades the rights under Article 21 and it cannot pass the mustering might of 24 the Constitution. Tolerance limits have not been fixed statutorily in many instances. Hence, reasonable standards, accepted by informed agencies and authorities must serve as the yardstick. The limits indicated by the Pollution Control Board, should serve as the standard in this case.
25. The counsel also relied upon the judgment in RADHEY SHIAM VS. GUR PRASAD SERMA AND ANOTHER reported in AIR 1978 ALL 86 and brought to notice of this Court Para No.6, wherein the Allahabad High Court observed that constant noise, if abnormal or unusual, can be an actionable nuisance if it interferes with one's physical comforts. Even in a 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. The right to commit a private nuisance can in certain circumstances, be acquired either prescription or by the authority of a statute. The counsel referring this judgment would contend that establishment of STP 25 by the side of the site of the plaintiffs causes nuisance and the same is invading the right of the plaintiffs under Article 21.
26. The counsel also relied upon the judgment in RAMESH GOBINDRAM (DEAD) THROUGH LRS. VS. SUGRA HUMAYUN MIRZA WAKF reported in (2010) 8 SCC 726 and brought to notice of this Court Para Nos.32 to 36, wherein it is discussed that the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property.
27. The counsel also relied upon the judgment in RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ANOTHER VS. BAL MUKUND BAIRWA reported in (2009) 4 SCC 299 and brought to notice of this Court Para Nos.12 to 15, wherein the Apex Court has discussed with regard to Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim ubi jus ibi remedium. A litigant, thus having a grievance of a civil nature has a right to institute a civil suit in a competent Civil Court unless its cognizance is either 26 expressly or impliedly barred by any statute. Ex facie, in terms of Section 9 of the Code, Civil Courts can try all suits, unless barred by the statute, either expressly or by necessary implication.
28. The counsel also relied upon the judgment in MANOHAR LAL (DEAD) BY LRS. VS. UGRASEN (DEAD) BY LRS. AND OTHERS reported in (2010) 11 SCC 557 and brought to notice of this Court Para Nos.30 to 34, wherein the Apex Court has observed that, it is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case. The counsel referring this judgment would contend that for the first time, the ground of no jurisdiction and the suit is barred by limitation under the special enactment is raised.
29. The counsel also relied upon the judgment of the Apex Court in BACHHAJ NAHAR VS. NILIMA MANDAL AND 27 ANOTHER reported in (2008) 17 SCC 491 and brought to notice of this Court Para Nos.10 and 17, wherein the Court has discussed with regard to violation of several fundamental rules of Civil Procedure and that the Court should confine its decision to the question raised in pleadings. The counsel referring this judgment would contend that the issue of bar of jurisdiction has not been raised in the appeal and unless the same is raised before the Trial Court, the relief cannot be granted.
30. The counsel also relied upon the judgment in SMT. LALITHAKSHI ANNADANAGOUDA VS. SADASHIVAPPA BASAPPA PATIL AND ANOTHER reported in AIR 1984 KAR 74, wherein this Court discussed the several judgments of different Courts and held that principles laid down therein is undisputable and that only shows that appeal against discretionary order passed by the Trial Court is more in the nature of a revision and the Appellate Court should not likely to interfere with an order passed by the Trial Court in its judicial discretion.
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31. The counsel also relied upon the judgment in THE MUNICIPAL CORPORATION OF DELHI VS. SHRI SURESH CHANDRA JAIPURIA AND ANOTHER reported in (1976) 4 SCC 719 and brought to notice of this Court Para Nos.8, 9, 10 and 11, wherein the Apex Court has observed that the Court has to look into the averments made in the plaint and also Section 41(h) of the Specific Relief Act, 1963 which lays down that an injunction, which is a discretionary equitable relief, cannot be granted which an equally efficacious relief is obtainable in any other usual mode of proceeding except in cases of breach of trust and the Court has to look into the principles governing the interference and the Trial Court has considered the material on record and passed an order and there is no need to interfere with the findings of the Trial Court.
32. In reply to the arguments of the learned counsel for the respondents-plaintiffs, learned counsel for the appellants, apart from relying upon the judgments of the Madras High Court and Gujarat High Court, also relied upon the judgment of the Apex Court with regard to the jurisdiction in JAGMITTAR SAIN 29 BHAGAT AND OTHERS VS. DIRECTOR, HEALTH SERVICES, HARYANA AND OTHERS reported in (2013) 10 SCC 136, wherein it is held that if a Court having no jurisdiction over a matter passes a decree, it would amount to nullity and jurisdiction cannot be conferred upon a Court/Tribunal by acquiescence or waiver, if it otherwise does not have jurisdiction. The counsel referring this judgment would vehemently contend that the Trial Court has no jurisdiction to entertain the suit.
33. The counsel also relied upon the judgment of the Division Bench of this Court in UNION OF INDIA AND OTHERS VS. ALISAB reported in 2000 SCC ONLINE KAR 400, wherein, it is held that no relief as claimed could have been granted by the learned Single Judge, since the question of jurisdiction was not raised either in the pleadings or during the course of the arguments, therefore, it is not competent for us to enter into that question and held that we do not agree with the said contention, inasmuch as it is well settled that the question of jurisdiction can be raised at any stage of the proceedings and can be gone into even suo motu by the Court even if it is not 30 raised by either of the parties. It is a trite law that if the Court has no jurisdiction to decide a cause then no party can confer the same if it is not objected to by the contesting party. The counsel referring this judgment would vehemently contend that even though the ground of jurisdiction is not raised before the Trial Court, the same can be considered at the appeal stage also.
34. Having heard the learned counsel for the appellants and the learned counsel for the respondents and also the principles laid down in the judgments referred (supra), the points that would arise for consideration of this Court are:
(1) Whether the Trial Court committed an error in allowing the application filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C.
granting an order of injunction against the defendants?
(2) Whether the Trial Court has committed an error in not considering the issue of jurisdiction in entertaining the suit and ought not to have granted the relief of injunction?
(3) What order?
31Point Nos.(1) and (2):
35. Both the points are taken up together for consideration, since the issue of jurisdiction as well as exercising the discretion by the Trial Court is raised before the Court. In order to consider the same, the Court has to look into the relief sought in the plaint before the Trial Court. Having perused the plaint which is produced as Annexure-D, the relief sought before the Trial Court is for mandatory injunction directing the defendants to remove the STP situated on the eastern side of the schedule 'A' property all along the western compound wall of the schedule property immediately and forthwith. In the event of failure on the part of the defendants in removing the STP, then to permit the plaintiffs to remove the same through a Court Commissioner and to recover the expense thereof from the defendant Nos.1 and 2 and grant a decree of permanent injunction restraining the defendant Nos.1 and 2 from putting up a permanent or temporary installation in the set back area on the eastern side of the schedule 'A' property.
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36. Having sought the relief of mandatory injunction, in Para No.8 of the plaint, it is pleaded that defendant Nos.1 and 2 started carrying on some activity on the eastern side of the schedule 'A' property and the plaintiffs were given to understand that remedial action was being undertaken by the defendant Nos.1 and 2. It is only when extreme foul and pungent smell emanated from the schedule 'A' property and the plaintiff and her family members made enquiries, they were shocked and surprised to learn that a full-fledged STP has been set up. To add insult to injury, the said STP was being used to treat sewerage. Ever since the installation of the STP, extreme foul smell (sewerage smell) started to emanate from the said treatment plant.
37. Having perused these averments made in the plaint, it is clear that already STP is installed and pungent smell was emanating. It is the claim of the defendants that they are running educational institution and more than 2500 students are studying and they have established the STP in compliance with the notification issued by the Forest, Ecology and Environment 33 Secretariat dated 19.01.2016. The counsel also would contend that Bangalore Water Supply and Sewerage Board also issued the circular on 04.06.2019, wherein also it is specifically mentioned that, it is mandatory to establish STP to the buildings of educational institutions measuring 5,000 square meters and above. Hence, the defendants contend that they have installed the STP in compliance of Annexures-B and C of the appeal and it is also their specific case that educational institution is being run from the last two decades.
38. The Trial Court also while discussing the same in Para No.10, taken note of the fact that the pipes have been left open on the ground level and STP is installed closer to the plaintiffs' property without leaving proper space as required and putting forth the contention that as per the notification and circular of BWSSB and KSPCR, they have installed the STP in their premises and there was no vacant space available for establishing STP, except on the eastern side of suit schedule 'A' property. It is also the specific case of the appellants that, except the said space, no other space is available for installing 34 STP but, the Court while taking note of the fact with regard to lack of jurisdiction as contended in the oral arguments, comes to the conclusion that this Court lacks jurisdiction to try this suit, holds no justification but, no reason has been assigned with regard to jurisdiction is concerned, except making an observation that this Court lacks jurisdiction to try this Court, holds no justification and only in one sentence, made an observation that holds no justification.
39. Learned counsel for the appellants-defendants have also relied upon the judgments of the Madras and Kerala High Court before the Trial Court, wherein it is discussed with regard to the issue of jurisdiction i.e., Section 58 of the Water (Prevention and Control of Pollution) Act, 1974 where there is a bar of jurisdiction that no civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an appellate authority constituted under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or 35 under this Act and nothing is discussed in the judgment of the Trial Court, even though the judgments of the Madras and Kerala High Court are relied upon by the appellants-defendants as to the issue of jurisdiction is concerned.
40. Learned counsel for the appellants-defendants also relied upon the judgment of the Gurajat High Court referred (supra), wherein the Court has discussed with regard to bar of jurisdiction under the National Green Tribunal (NGT) Act, 2010 and controversy raised between the parties is whether the suit is maintainable or not. I have already pointed out that under the Water (Prevention and Control of Pollution) Act, 1974, there is a bar under Section 58 of the Act. But, the plaintiffs have not approached the concerned authority for redressal of their grievances and directly approached the Civil Court.
41. The other contention of the learned counsel for the appellants-defendants is that under Section 14 of the National Green Tribunal Act, 2010, the Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to 36 environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I. This Court would like rely upon the judgment of the National Green Tribunal Principal Bench, New Delhi in KEHAR SINGH VS. STATE OF HARYANA reported in 2013 SCC ONLINE NGT 52, wherein in Para No.3 discussed with regard to the dispute of installation of STP and in Para No.14 of the judgment, it is observed that the applicant has invoked the jurisdiction of the Tribunal under Section 14 of the NGT Act with regard to establishment of STP on a location which, according to the applicant, it bound to create environmental problems and would adversely affect the public health and the same is entertained and discussed by the National Green Tribunal, particularly in Para No.47 of the judgment. Hence, it is clear that installation of STP is also an environmental issue and the same is considered by the National Green Tribunal.
42. Learned counsel appearing for the respondents- plaintiffs in his written submissions as well as in his arguments would vehemently contend that civil suit can be entertained by 37 the Trial Court when civil rights are violated and contend that even though there is a bar under Section 24 of the National Green Tribunal Act, 2010 and under Section 58 of the Water (Prevention and Control of Pollution) Act, 1974. However, he contend that no such order has been passed under Sections 25, 26 and 27 of the Act to take the matter before the Appellate Court under Section 28 of the Act. Hence, jurisdiction of the Civil Court is available to the plaintiffs for redressal of their grievances. Admittedly, the plaintiffs in the written statement have not raised the issue with regard to the jurisdiction, except stating that suit is not maintainable. But, during the course of the argument, the learned counsel for the respondents-plaintiffs has raised the issue of jurisdiction and relied upon the judgment of the Madras High Court, wherein the Court has discussed with regard to the bar under Section 58 of the Water (Prevention and Control of Pollution) Act, 1974 and the Trial Court has not discussed the same, except referring the same.
43. No doubt, both the counsels relied upon several judgments regarding jurisdiction, the Division Bench of this 38 Court in the judgment in UNION OF INDIA AND OTHERS VS. ALISAB reported in 2000 SCC ONLINE KAR 400, held that issue of jurisdiction can be raised at any point of time and need not necessarily raise the same in the pleading and the same can be raised in the appeal also. Further, even at the time of canvassing the argument also, the same can be raised and admittedly, the judgment of the Madras High Court is also relied upon before the Trial Court and the Trial Court, except stating that this Court lacks jurisdiction holds no justification and nothing is discussed regarding the jurisdiction.
44. It has to be noted that the point of jurisdiction goes to the very root of the case and if the Court is not having jurisdiction to entertain the suit, the question of granting any discretionary relief of mandatory injunction does not arise. When there is a bar under Section 58 of the Water (Prevention and Control of Pollution) Act, 1974 and under Sections 14 and 29 of the National Green Tribunal Act, 2010, wherein it is specifically held that no civil Court have jurisdiction to entertain the appeal in respect of any matter in its appellate jurisdiction 39 and having read the said proviso, the Trial Court ought to have given finding with regard to the jurisdiction whether suit is maintainable or not and the same is not touched upon by the Trial Court.
45. Having read the principles laid down in the judgments referred (supra), it is very clear that, at the first instance, the Court has to decide the issue of jurisdiction and then has to consider the application filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. In the case on hand, there is no finding with regard to the jurisdiction is concerned, when the issue was raised with regard to the bar for filing a suit. I have already pointed out that, in Para No.10 of the impugned order, the Trial Court, except stating that this Court holds no justification, no reason has been assigned regarding jurisdiction. Hence, the Trial Court has to consider the issue with regard to jurisdiction and bar in exercising the jurisdiction and then, entertain an application filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. and without considering the issue of jurisdiction, the relief cannot be granted.
40
46. It is also not in dispute that suit is filed for the relief of mandatory injunction to remove the STP and in Para No.8 of the plaint, it is pleaded that STP is installed and the same has started its commissioning and foul smell is emanating. When such pleading is made and relief is sought for mandatory injunction and the very prayer in the suit itself is for removal of STP and if defendants fail to remove the same at the cost of the plaintiffs, the Trial Court ought to have taken note of the said fact while passing an order and when an order of mandatory injunction is prayed in the suit, the Trial Court ought to have considered the very interim prayer and failed to take note of the said fact into consideration.
47. Apart from that, the Trial Court, while considering point Nos.1 to 3, mainly relied upon the memorandum of STP dated 01.03.2021 as to the guidelines and location of STP by KSPCB and this guidelines are issued subsequent to the filing of the suit and notification is issued on 01.03.2021. Admittedly, the suit was filed in the year 2019 itself and defendants claim that in compliance of Annexures-B and C, they have installed 41 STP and the Trial Court failed to take note of the said fact into consideration and this guidelines is prospective and not retrospective, since the same was issued on 01.03.2021 and by that time, the suit was pending before the Court and by referring the notification dated 01.03.2021, the Trial Court comes to the conclusion that the appellants have not complied with the guidelines and the very observation made by the Trial Court is erroneous since the suit was already filed in the year 2019 and giving effect to the circular and guidelines of 2021 does not arise and the said finding is erroneous and the Trial Court has not discussed anything about the contention of the respective parties. But, mainly relied upon the subsequent guidelines and notification dated 01.03.2021 and passed the order and not considered the merits of the contentions raised by the plaintiffs and the defendants. When the guidelines is prospective, the same ought to have been considered by the Trial Court, since the suit was filed in 2019 and committed an error in passing such an order.
48. It is the case of the defendants that already STP is commissioned and the same is installed in terms of the 42 notification and memorandum of STP guidelines marked as Annexures-B and C and the same is not discussed by the Trial Court. It is the specific contention that, already STP is installed and no other space is available, except the eastern side of the suit schedule 'A' property though they were having space for installation of STP and the same is also not discussed by the Trial Court while passing an order. When such being the case and the issue involved between the parties is with regard to the jurisdiction as well as the merits of the application and relief sought is also for mandatory injunction to remove the STP, the same requires to be considered by the Trial Court and the Trial Court failed to take note of the relief sought in the I.A. and also the pleadings and main relief sought in the plaint and consider the bar under Section 58 of the Water (Prevention and Control of Pollution) Act, 1974 and also bar under Section 29 of the National Green Tribunal Act, 2010. Hence, it requires interference of this Court. Accordingly, answered point Nos.(1) and (2) as 'affirmative'.
43Point No.(3)
49. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned order dated 01.03.2023 passed in O.S.No.3213/2019 on the file of the III Additional City Civil and Sessions Judge, Bengaluru City (CCH No.25), allowing I.A. No.1 filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. granting an order of injunction against the defendants, is hereby set aside and matter is remitted back to the Trial Court to consider the same afresh keeping in mind the observations made hereinabove with regard to the jurisdiction as well as the merits of the application filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C.
(iii) The Registry is directed to communicate this order to the concerned Court, forthwith.
Sd/-
JUDGE ST