National Green Tribunal
Srinivas Prabhu Kumble vs Karnataka State Pollution Control ... on 15 March, 2021
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
1
Item No.15 BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Application No. 158 of 2020 (SZ)
(Through Video Conference)
IN THE MATTER OF:
Srinivas Prabhu Kumble,
301, First Main Road,
Industrial Town,
Rajaji Nagar,
Bengaluru 560 010 ... Applicant
Vs.
1.The Senior Environmental Officer,
Karnataka State Pollution Control Board,
Thimmaiah Road, Bangalore City,
Bangalore 560010.
2. Health Officer of Bruhat Bangalore Mahanagara Palike,
Malleswaram, Bangalore 560003.
3. Ms.Karishma P. Shah,
29,Sharada Colony,
VII B Main III Stage, IV Block,
Basaveshwara nagar,
Bengaluru 560 079.
4. Sri. Parekh S Shah,
29,Sharada Colony,
VII B Main III Stage, IV Block,
Basaveshwara nagar,
Bengaluru 560 079. .Respondents
Date of hearing:15 -3-2021
CORAM: HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s) : Mr. Dhalapathy Vignesh Kumar
For Respondent(s Mr.G.M. Syed Nurullah Sheriff rep.
Mr. Gokul Krishnan for R1
Mr. T.V. Sekar for R2
Mr. Sanjesh.M rep.
Mr. K.S. Shankar Chakrapani
Mr D. Karthik for R3 & R4
JUDGMENT
The above application has been filed by the applicant stating that on account of the operation of the diesel generator set by respondents 3 and 4, sound pollution is being caused in the third floor of the building situated at No.2, I Main 2 Road, West of Chord Road, Industrial Town, Rajaji Nagar, Bangalore in which the applicant is also occupying one of the rooms for conducting training course for students. According to the applicant, the respondents 3 and 4 who are also occupying the same third floor in the building, has placed two diesel generators in the common pathway which emanates smoke, thereby causing air pollution and noise pollution. Though complaints have been given to the authorities, no steps have been taken in this regard. So applicant filed the above application seeking the following reliefs:-
"Direct the respondents 3 and 4 preventing from operating the diesel generator either in the common corridor of the third floor portion of the building viz., Bindu Galaxy Complex constructed on property bearing No.2, I Main Road, West of Chord Road, Industrial Town, Rjaji nagar, Bangalore 560010 in the office unit of bearing No.303, 3rd floor portion of the same complex. To award compensation of Rs.1,80,000/- (calculated at Rs.30,000/- per month starting from March, 2020) which is to be paid by respondents 3 and 4 to the applicant or any appropriate sum as may be determined by this Hon'ble Tribunal. Direct the respondents 1 and 2 to take all legal steps to prevent the causing of pollution by operating the generators by the respondent 3 and 4 either in the common corridor of the 3rd floor portion of the building viz., Bindu Galax Complex constructed on property bearing No.2, I Main Road, West of Chord Road, Industrial Town, Rajaji Nagar, Bangalore 560010 and also direct the respondents 1 & 2 to take all legal action available in law for causing air and noise pollution."
2. As per order dated 24.8.2020, this Tribunal had admitted the matter and directed the official respondents to file their status report to this Tribunal and posted the case to 20.10.2020 for that purpose. Thereafter, the matter has been adjourned from time to time by notification. It was taken up on 22.1.2021 and on that day this Tribunal had considered the report submitted by the first respondent dated 9.10.2020, e-filed on 21.1.2021 and received on 22.1.2021 which was extracted in para 3 of the order which reads as follows:
INSPECTION REPORT OF SRI. K. RAMESH, ENVIRONMENTAL OFFICER, REGIONAL OFFICE, BANGALORE CITY-WEST.3
OFFICER ACCOMPANIED: DR. K.M. RAJU, DEPUTY ENVIRONMENT OFFICER 1 Name and Address of the unit inspected M/s., Bindu Ventures, Site No. 2, 1st Main Road, Rajajinagara, Industrial Town, Bengaluru 560 010.
Contact Person: Chandrik -
Manager
2 Name and address of the complainant Sri. Srinivas Prabhu Kumble
S/o Sri Narayana Prabhu Kumble
O/o, of M/s. Bindu Ventures,
Bindu Galaxy Office Complex,
Office No. 301, 3rd Floor, "Bindu
Galaxy" First Main Industrial
Town, Rajajinagar, Bengaluru 10
Contact Person: Sri.. Paresh S.
Shaw - CA
3 Name and address of the violator Miss. Karishma P Shah and Sri.
Parish S. Shaw O/o, of M/s.
Bindu Ventures, Bindu Galaxy
Office Complex, Office No. 303, 3rd
Floor
Site No. 2, 1st Main Road,
Rajajinagara Industrial Town,
Bengaluru 560 010.
Contact Person: Sri. Paresh S
Shaw - CA
4 BBMP Official present on 07.09.2020 Dr. Rajendra - Medica Officer
5 Date of Inspection 07.09.2020 and 19.09.2020
6 Type of activity of the unit along with This is a commercial office complex
category and classification as per Board classified under Large Green
notification Category
7 Consent Status The Consent of operation is valid
upto 31.12.2020
Preamble:
M/s. Bindu Ventures, is a existing commercial complex located at site no. 2, 1 st Main Road, Rajajinagara Industrial Town, Bengaluru - 560 010. The authorities have constructed commercial complex in a total build up area of 8650.70 Sq.M with Basement Floor-Ground Floor + Ground Floor + 4 Upper Floors. The authorities of Bindu Ventures have obtained consent for operation of the Board for the period upto 31.12.2022 for operating the 10 KLD Sewage Treatment Plant and 350 KVA DG Set.
The Board has received a complaint from the association members of Bindhu Galaxy Office complex Owners Association on 20.03.2020 and also direction given from Board legal section that Sri. Srinivas Prabhu Kumble S/o Sri. Narayana Prbhu Kumble, Office No. 301, 3rd Floor, "Bindhu Galaxy" First main, Industrial Town, Rajaji Nagar, Bengaluru - 10has filed a complaint application before the Hon'ble NGT vide No. 158 of 2020 (SZ) directions dated 24.08.2020 stating that Miss. Karishma P. Shah and Sri. Paresh S Shah S/o Late Harilal Shah has placed his own individual diesel generator in the common pathway to third floor of the building and same is causing air and noise pollution. The Hon'ble NGT has directed this office to conduct inspection and submit a report.
4In view of the commercial office complex of M/s. Bindu Ventures and complainant office has been inspected on 07.09.2020 and observed the following:
1. The commercial complex has been occupied by the various small offices.
2. The commercial complex authorities have provided Sewage Treatment Plant of capacity 10 KLD and 350 KVA DG set, which are under operation during the time of inspection. The acoustic and required chimney height is provided for 350 KVA DG Set.
3. The commercial complex authorities have provided water supply and power supply to all small offices except to the office of Miss. Karishma P Shah and Sri. Paresh S Shaw due to their internal dispute.
4. During visit both the parties have expressed about internal dispute, case filed before court and police station.
5. Miss. Karishma P Shah and Sri. Paresh S. Shaw has occupied office No. 303 in 3 rd Floor of the same biding and kept two small DG Sets in the pathway/corridor as they re not having the BESCOM power supply to their office. These two DG Sets are small DG's which are not having acoustic enclosure. One is portable 3 KVA DG Set which is not working at the time of inspection. Sri. Paresh S. Shaw informed that it is not being used as the capacity is low. The other one is 5 KVS DG Set which is working on daily 10.00 AM to 5.00PM. Presently, this Office is not having BESCOM power supply and water supply.
6. The 5 KVA DG Set is a mobile set which is not having acoustic enclosure and chimney.
Hence it is causing noise and air pollution to the entire area.
It is opined that in the said commercial complex, both the parties are responsible for complying to the provisions of Air (Prevention and Control of Pollution) Act, 1981. But they are making noise and air pollution to the neighbouring offices and surrounding area. Hence both the parties are liable to take action.
Therefore based on the above non compliance this office has issued notices to the both parties to solve the problems and to shift the DG Sets. If they failed to comply within the stipulated time, this office will recommend the Board to initiate further course of action as per the provisions of Air (Prevention and Control of Pollution) Act, 1981.
The copy of the notices issued and photographs are enclosed.
3.Thereafter, the matter has been posted to 29.1.2021 for completion of pleadings. On 29.1.2021, the matter has been adjourned to 15.2.2021 for completion of pleadings and consideration of report. On 15.2.2021, this Tribunal had directed the Pollution Control Board to file further action taken report and also for completion of pleadings and posted the case to today for that purpose.
4. When the matter came up for hearing today through Video Conference, Mr. Dhalapathy Vignesh Kumar represented applicant. Mr. G.M. Syed Nurullah Sheriff represented M.R. Gokul Krishnan, counsel for first respondent , Mr. TV.
5Sekar represented second respondent and Mr. Sanjesh M represented Mr. K.S Shankar Chakrapani and Mr.D. Karthik, counsel for respondents 3 and 4.
5. We have received the reply affidavit filed by the second respondent dated 21.1.2021 which reads as follows:
"The Second Respondent at the outset denies all the allegations and averments contained in the application as against the Second Respondent except those that are admitted hereunder and puts the applicant to very strict proof of the rest.
With reference to Paragraph 4 the second Respondent states that the averments made therein that, an office complex building is constructed on the property bearing No.2, First Main Road, Industrial Town, Rajajinagar, West of Chord Road Bangalore and the building has been constructed by the owner of the property namely Bindu ventures and the same building has multiple floors, may be true and the Applicant is put strict proof of the same.
With reference to Paragraphs 5 & 6 the second respondent states that the averments made therein that the first applicant has purchased the office unit at No.301, 3rd floor, of the above said complex vide Sale Deed dated 26/2/2017 and he is carrying on the business of providing training in software, corporate training and financial consultant activities, etc. and the Second Applicant has purchased office unit No.304 vide sale deed dated 22/6/2017 and he let out to M/s Deccan Group, and in the said office 15 employees are working may be true and the Applicants are put to strict proof of the same.
With reference to Paragraph 7 the Second Respondent states 6 that the averments made therein that third and fourth Respondents are occupying the office unit No.303, third floor, in the very same building and they are running a Chartered Accountant Office in the said unit has placed two generator in the corridor of the third floor, may be true and the applicants are put to strict proof of the same.
With reference to Paragraph 8 the Second Respondent states that he is not aware of the various litigations pending between the Third and Fourth Respondents with the owners of the building and the applicants are put to strict proof of the same. The Applicants are also put to strict proof the other averments and allegations contained therein.
8 With reference to Paragraph 9 the Second respondent states that averments made in this para are false. It is submitted that, the entire building constructed by the owner of the building is in violation of the sanctioned plan and therefore, the BBMP has initiated proceedings under Sec.321 of Karnataka Municipal Corporation Act, 1976, directing the owner of the building to remove the deviated portions of the building. Feeling aggrieved by the demolition owner, the owner has preferred an appeal before the Karnataka Appellate Tribunal, at Bangalore, wherein the Hon'ble Tribunal was pleased to pass an order of stay of the said section 321of the Karnataka Municipal corporation Act 1975 proceedings, vide order dated 22/6/2018, in Appeal No.320/2018 and the Hon'ble Tribunal further directed the parties to maintain status quo in respect of the property in question. The second 7 Respondent states that Occupation Certificate has not been issued to the said building. Since no occupation certificate is issued, no permanent electricity connection is provided. The occupiers including the Applicants and the third and fourth Respondents are illegally running the business without obtaining the valid license. With reference to Paragraph 10 the Second Respondent states since the status quo order is operating in respect of the entire property in question, the officials of the BBMP are not able to take action against the occupiers, who have violated the constructions by erecting some metal sheets in the parts of the building. BBMP has several times warned the occupiers including the respondent NO.3 and 4 not use generators and to leave open spaces for free light and air.
With reference to Paragraph 11 the Second Respondent states that BBMP has not received any complaint from the Applicants to take action against the third and fourth Respondents. With reference to Paragraph 12 the Second Respondent states that the averments and allegations made in this para are false and this pertains to respondent No.1. BBMP has not received any compliant against the third and fourth Respondents avered in this para. with reference to paragraph 3 the second Respondent states that the governments contained therein are concerned with the third and fourth Respondents and hence no specific reply is given. The Second Respondent states that it is pertinent to point out that in the Memorandum of Application the Second Applicant is not shown as an Applicant. However it is submitted that, the 8 applicants themselves have been running the business in the said building without having necessary permission from the BBMP and the third and fourth Respondents are also running the office without taking necessary permission from the BBMP. Therefore, the Heath Officer, Govindrajanagar Sub- Division, BBMP inspected the building and has issued notices to all the OCCupiers of the building including in the respondents No.3 and 4 on 11/12/2019 to submit the necessary documents to the office within seven days from the date of the notice and issued remainders also. In spite of the notices, the third and fourth Respondents failed to comply the same. It is the duty of the first respondent Pollution Control Board to take action about the noise and sound pollution causing by the third and fourth Respondents.
It is therefore prayed that in the above circumstances this Hon'ble Tribunal may be pleased to dismiss the above application with exemplary costs and pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."
6. We have also received the report submitted by the Environmental Officer, RO, Bengaluru City West, signed on 25.2.2021 e-filed on 12.3.2021 and received on 15.3.2021 which reads as follows:
INSPECTION REPORT OF SRI. K. M. RAMESH, ENVIRONMENTAL OFFICER, REGIONAL OFFICE BANGALORE CITY -WEST.
Name and Address of the unit M/s. Bindu Ventures, 1 inspected Site No. 2, 1st Main Road, Rajajinagara Industrial Town, 9 Bengaluru-560 010.
Contact Person: Dheeran - Director Name and address of the Sri. Srinivas Prabhu Kumble 2 complainant S/o Sri. Narayana Prabhu Kumble, O/o of M/s. Bindu Ventures, Bindu Galaxy Office Complex, Office No. 301, 3rd Floor, "Bindu Galaxy" First Main, Industrial Town, Rajajinagar, Bengaluru-10 Name and address of the Miss. Karishma P Shah and Sri. Paresh S Shaw. 3 violator O/o of M/s. Bindu Ventures, Bindu Galaxy Office Complex, Office No.303, 3rd Floor, Site No. 2, 1st Main Road, Rajajinagara Industrial Town, Bengaluru-560 010.
Date of inspection. 19.02.2021 4 Type of activity of the unit along This is a commercial office complex classified under Large 5 with category and classification Green category as per Board notification Consent Status The consent for operation is valid upto 31.12.2022 6 Preamble :
M/s. Bindu Ventures, is a existing commercial complex located at Site No. 2, 1st Main Road, Rajajinagara Industrial Town,Bengaluru-560 010. The authorities have constructed commercial complex in a total built up area of 8650.70 Sq.Mtr with Basement Floor+Ground Floor+4Upper Floors. The authorities of Bindu Ventures have obtained consent for operation of the Board for the period upto 31.12.2022 for operating the 10 KLD Sewage Treatment Plant and 350 KVA DG Set.
In view of the case filed before the Hon'ble NGT by Sri. Srinivas Prabhu Kumble S/o Narayana Prabhu Kumble, Office No. 301, 3rd Floor, "Bindu Galaxy" First Main, Industrial Town, Rajajinagar, Bengaluru-10 vide No. 158 of 2020(SZ), regarding noise pollution caused by the Miss. Karishma P Shah and Sri. Paresh S Shah S/o Late Harilal Shah by placing the portable DG Set in the corridor, the commercial complex was inspected and report was sent to Board Office vide No. PCB/RO-BCW/NGT-158-2020/2020-21/308 dated 09.10.2020 for submission to Hon'ble NGT.
Further, Sri.Mahesh- Legal Assistant of Board Office has called on 12.02.2021and informed to submit the latest inspection report on status of portable DG Set. Accordingly, the Offices of the Bindu Ventures and complainant office were inspected on 19.02.2021 and following are the observations:
1. The Office belongs to Sri. Srinivas Prabhu Kumble S/o Sri. Narayana Prabhu Kumble (Applicant) who occupied in No.301 was closed.
2. The Office belongs to Miss. Karishma P Shah and Sri. Paresh S Shaw (Violator) who occupied in No.303 was closed.10
3. Miss. Karishma P Shah and Sri. Paresh S Shaw, have removed the 3 KVA DG Set and 5 KVA DG Sets from the pathway/corridor from many months and they are not working in the Office as informed by the Director of M/s. Bindu Ventures.
4. As there was no DG Sets in the pathway/corridor, there is no noise pollution.
As of now, both the parties have closed their shop and Miss. Karishma P Shah and Sri. Paresh S Shaw has removed the DG Sets from the pathway/corridor. Since they are not working in the office premises and removed the DG Sets, there is no noise pollution in the building. Hence the matter can be treated as closed temporarily. The copy of the photographs regarding removal of DG Sets is enclosed.
7. The respondents 3 and 4 also filed their counter affidavit contending as follows:
COUNTER AFFIDAVIT FILED BY THE 3RD AND 4THRESPONDENT I, Paresh S. Shah,S/o. Late Sharad H. Shah, Aged about 59 years, and residing at No. 29, Sharada Colony, VII "B" Mail, III Stage, IV Block, Basaveshwaranagar, Bengaluru - 560 079,do hereby sincerely state and solemnly affirm as follows:
I am the 4thRespondent herein and I am well versed with the facts and circumstances of the instant case. It is stated that I am authorised to file this Counter Affidavit on behalf of the 3rd Respondent also.
It is submitted that at the outset, all averments made by the Applicant in his Affidavit are denied except the ones specifically admitted toherein. It is submitted that the present Original Application filed by the Applicant is not maintainable both in the eyes of law and facts of theinstant case. It is submitted that the present Respondents are law abiding citizens and have a reputable professional experience and practice in the society. It is submitted that the present Respondents never intend to violate any provisions of law or regulations and would strive to strictly follow the legal stipulations. It is submitted that the present Application has been filed in respect of the alleged pollution caused by the generators installed by the present Respondents in their office complex. In this regard, it is humbly submitted that the said generators have not been functional since 1st of October 2020 and hence, no pollution has been causedtherein.Evidence in this regard in the form of letter submitted before the concerned Chief Post Master is annexed herewith. It is submitted that the present Respondents also undertake to not use the said generators without following the regulations in that regard. It is also undertaken that the present Respondents would not commence use of the said generators without installing a necessary acoustic enclosure as mandated by law. It is submitted that the present Respondents undertake to this Hon'ble Tribunal that they would not cause any violations of the laws in force, and the connected Rules and Regulations and would not operate the generators in question, except in accordance with the permissible emission limits and necessary enclosures in place. Hence, it is humbly prayed that no punitive action may be taken against the present Respondents.
It is further submitted that notwithstanding the aforesaid, the application filed by the applicant herein is tainted by malafide and has been filed with an ulterior motive. The Applicant has not disclosed the entire facts and circumstances in his 11 application and has misrepresented before this Hon'ble Tribunal. It is stated that in order to fully understand the circumstances surrounding the present case, a brief background of the facts of the case are as follows. It is submitted that the averments made in para 4 of the Applicant's memorandum of application are true to the extent that an office complex is constructed on the property bearing No. 2, First Main Road, Industrial Town, Rajajinagar, Bengaluru and the same was constructed by Bindu Ventures who are the owners of the property.
It is submitted that the office premises bearing no. 303, 3rd floor, Bindu Galaxy, No.2, 1st Main Road, Industrial Town, Rajajinagar, West of Chord Road, Bangalore - 560010 was purchased by the 3rdRespondent, who is none other than the daughter of the 4th Respondent, and who is also a chartered accountant under employment and thus has nothing to do with the use of the generator by the 4th Respondent in the said office premises. It is stated that the 4thRespondent is a practicing chartered accountant in Bangalore since 1987 and has been running his firm from the said office premises right from 01.10.2017 upto 30.09.2020. However, since the onset of the Covid19 pandemic and the lockdown that ensued, the 4thRespondent has not been operating out of the said office and the office has been non functional.1.
It is stated that this being the case, there was a serious misunderstanding and dispute between the 3rd Respondent and the builders of the office premises, M/s Bindu Ventures, Bangalore with regard to the levy and collection of GST @ 12% on the registered sale value of the said office premises of Rs.41 lakhs amounting to Rs. 4.92 lakhs in the form of GST. The said dispute arose on 08.02.2018 much later after the executing of the absolute sale deed in favour of the 3 rd Respondent by the said builder M/s Bindu ventures on 20.12.2017.2.
It is submitted that the said builder has neither got any occupancy certificate nor any completion certificate till date from the competent Authority, that is, the concerned BBMP office, Govindarajanagar Ward, Bangalore. In fact, the 3rd Respondent has filed a complaint against the said Builder before RERA Authorities bearing case No.3176 of 2019. It is stated that as a result, the Khata applied by the 3rdRespondent for change of name in her favour was rejected by the said BBMP authorities with an endorsement stating that they are unable to do so due to the pending disputes between them and the said builder.In fact, the concerned BBMP has passed an order of demolition of unauthorized structure against the said builder vide its order dtd. 21.03.2018. This matter is pending adjudication before the Karnataka Appellate Tribunal in case no. KAT 320/2018. In short, the said builder is not at all a law abiding citizen.
3.It is submitted that ever since 08.02.2018, the said builder has been harassing the 3rd and 4thRespondents in all possible manners illegally including the 12 disconnection of all the basic amenities to their office premises including the parking facility. A suit in this regard was filed by the 3rdRespondent against the said builder and proceedings in relation to the same are pending before the Hon'ble High Court of Karnataka bearing CRP No. 08 of 2019. In fact, the said builder has admitted before the Karnataka State Human Rights Commission that they have never provided the 3rd and 4thRespondents with the basic amenities such as electricity, water, sanitation etc.In fact, the electricity and other amenities were disconnected by the said builder only from 08.02.2018.
4.It is humbly submitted that due to the severe dispute with the builder M/s. Bindu Ventures and at their behest, electricity supply was made unavailable to the 3rd and 4th Respondents' office premises. As a result, since 09.02.2018, the 4thRespondentwas running his office of chartered accountancy from the said premises with the use of a generator. The present generator of SHAKTI brand with 5KVA capacity was purchased by the 4th Respondentonly on 29.05.2020. This averment is supported by documentary evidence in the form of invoice. Copy of the said invoice is annexed herewith. Prior to that, the 4thRespondent was using a Honda Generator of around 3 KVA capacity.
5.It is stated that this being the case, the 4thRespondent was forced to use a generator for running his office solely due to the constant pressure by the builder M/s. Bindu Ventures. It is submitted that however, the pollution from the said generator was virtually non- existent and the same is evidenced from the fact that even though the 4thRespondent was using the generator since February,2018 itself, no complaints have been received regarding the same from any other persons in the building.
6.It is submitted that however, due to escalation of tensions between the 4thRespondent and M/s. Bindu Ventures, FIR's and charge sheet were filed by the Jurisdictional Magadi Road Police Station against the said builder and his accomplices for indulging in criminal offences against the 3rd and 4thRespondents. Further, the FIR has also been filed against them for criminal offence of trespass and damages to the 4thRespondent's office toilet and other properties.
7.It is submitted that from a bare perusal of the above mentioned facts, it becomes amply clear that the builder, M/s. Bindu Ventures is in the constant habit of causing disruption to the 4thRespondent's business and has put lots of hurdles to the present Respondents at every possible juncture.
8.It is submitted that in an attempt to further intimidate and cause further hardships to the present Respondents, the present original application has been filed by the Applicant, who is a fellow tenant/owner of 13 an office in the same building, at the instigation of the builder, M/s. Bindu Ventures, with a view to cause further damages to the present Respondents and also causing loss of profits to the present Respondents.
9.It is humbly submitted that the averments made in para 8 of the application filed by the Applicant is completely false and misleading, as the 4thRespondent was forced to the present position of using the generator solely due to the hurdles put forth by the builder. Now, the Applicant and M/s. Bindu Ventures have colluded behind the backs of the present Respondents to cause further harm and losses and hardship to the present Respondents.
10.It is humbly submitted that the averments made by the Applicant are completely false and misleading owing to the fact that the 4thRespondenthas stopped running his profession since 1st of October, 2020 and as a result, the present 4thRespondent has also stopped using the said generators. Further, the present Respondents have made all possible efforts to have an electricity connection allotted to their office, however, the same were thwarted due to the builder. Now, the builder has further put forth further hurdles to the present Respondent's profession.
11.It is further submitted that the collusion between the Applicant and the builder is exemplified by the fact that the Applicant has stated in para 13 of the application that pollution has been caused only since March 2020 and never had any problems with the present Respondents for the past 2 years and have only now come forth to cause hardships to the 3rd and 4thRespondents at the instance of the builder.
12.It is thus submitted that the present Application filed by the Applicant at the instance of the builder, M/s. Bindu ventures is nothing more than a false, frivolous and vexatious application filed to cause serious loss and damages to the 3rd and 4thRespondents. It is stated that the present application is an abuse of the process of the court as it has been filed with an ulterior motive and with a personal vendetta towards the present Respondents.
13.Hence, it is humbly submitted that the present Application filed by the Applicant is devoid of all merits and is nothing more than an attempt to smear the 3 rd and 4thRespondents with wild and unfounded allegations so as to disrupt their peaceful possession and enjoyment of their property and hence is liable to be dismissed. It is submitted that the undertaking given by the present Respondents may be taken on record and the application filed by the Applicant based on false averments may be wholly rejected and the Applicant may be held not liable for any compensation to be paid as he has not come to the court with clean hands.
14For the reasons stated above, it is humbly prayed that this Hon'ble Tribunal maybe pleased to hold that the present Original Application is devoid of merits and liable to be dismissed, and thus render justice."
8.The point that arises for consideration is "Whether the applicant is entitled to get any of the reliefs claimed in the application?
9.The learned counsel appearing for the respondents 3 and 4 submitted that they have given an undertaking that they will not operate the DG set without complying with all legal obligations and that can be recorded and the matter can be closed. The learned counsel also submitted that due to lock down, both the applicant as well as respondents 3 and 4 are not doing their business in the premises and as such there was no existing pollution arises at present
10. The Pollution Control Board has filed further action taken report wherein they have stated that since both the applicant as well as respondents 3 and 4 have closed their shop and removed the DG set from the pathway, the same can be closed, as there is no existing pollution arises in that area. The allegation made is contrary to what was stated by the learned counsel appearing for the respondents 3 and 4 that due to lock down, they could not remove the DG set since their office is not functioning. However, considering the circumstances that there was an undertaking given by respondents 3 and 4 who are conducting Chartered Accountant office, we feel that this undertaking can be recorded with the belief that they will not violate the undertaking given by them considering their position that they are holding in the society as responsible Chartered Accountants who are expected to follow the rule of law and comply with the provisions of the law which requires them to operate DG set in that area without causing any nuisance. Since the respondents 3 and 4 and the applicant are not operating their respective avocation/occupation office in the building at present and the DG set is not operating and the respondents 3 and 4 have given an undertaking that they 15 will not operate the DG set without complying with the legal provisions, there is nothing survives in the matter and the application can be disposed of accordingly.
11. So the application is disposed of as follows:
(i)The undertaking given by respondents 3 and 4 that they will not operate the Diesel Generator Set without obtaining necessary permission or comply with the legal provisions for such operation is recorded.
(ii) Since both the applicant as well as respondents 3 and 4 are not carrying on their avocation in the building at present, there is nothing survives and no further order is required in this matter.
(iii)The Pollution Control Board as well as the second respondent are directed to monitor the functioning of the respondents 3 and 4 and if they find any violation as against the undertaking given by them before this Tribunal, they are directed to take appropriate action against them for violating the environmental norms in accordance with law.
12.Considering the circumstances, the parties are directed to bear their respective costs in the application.
13.The Registry is directed to communicate this order to the respondents 1 and 2 for their information and compliance of the directions of this Tribunal.
With the above directions and observations, the application is disposed of.
........................................J.M. (Justice K. Ramakrishnan) .........................................E.M. (Shri. Saibal Dasgupta) O.A.158/2020-15.3.21- Kkr