Delhi District Court
Both R/O F17/69 vs Biru Ram Jindal on 11 December, 2015
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In the court of Anubhav Jain, Civil Judge-05, Central District, Tis
Hazari Courts, Delhi
Suit No. 327/14
Unique ID No. 02401C 0675702006
Ram Kumar (Deceased)
Through His Legal Heirs
I) Meena
D/o Late Ram Kumar
W/o Sh. Ashok Kumar
R/o WZ250, Inder Puri,
New Delhi12
ii) Dharam Raj
S/o Late Ram Kumar
iii) Mahavir Singh
S/o Late Ram Kumar
Both R/o F17/69, Sector8,
Rohini, Delhi85 ................ Plaintiff
Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal
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Versus
1.Sh. Biru Ram Jindal S/o Late Sh. Ronak Ram Jindal
2) Shri Manish Jindal S/o Shri Biru Ram Jindal
3. Shri Ajay Jindal S/o Shri Biru Ram Jindal All Partners of M/s, Jindal Brothers, 28, New Rohtak Road, Industrial Area, Anand Parbat, New Delhi05
4. The Central Pollution Control Board, Karkardooma, Delhi ............... Defendants Date of Institution: 10.08.2006 Date of Final Decision: 11.12.2015 Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal 3
1. Present suit for recovery of damages of Rs. 1,00,000/ is filed by the plaintiff against the defendant.
2. It is stated by the plaintiff in his plaint that he is running his business at Plot No. 28, Gali No. 6, Main New Rohtak Road, Anand Parbat Industrial Area, Anand Parbat, New Delhi under the name and style of M/s New Janta Iron Store. It is further stated that defendant no. 1 and 3 are running their factory at other portion of the same Plot No. 28, Gali No. 06, Main New Rohtak Road, Anand Parbat Industrial Area, Anand Parbat, New Delhi05. It is further stated that Defendant no. 1 to 3 are running their business by using heavy machines i.e. Iron Grinder Machine and Iron Surface Grinding Machine etc. which creates a lot of noise. It is further stated that when the said machines are used by the defendant no. 1 it causes foul smoke which resulted into causing injuries to the eyes of the people, particularly to the plaintiff as he has adjoining shop to that of defendant. It is further stated that due to said noise plaintiff started facing breathing problem and that plaintiff could not bear the loud heavy noise which is caused due to the use of said machines of the defendant no.1. It is further stated that due to use of heavy machines, hearing power of the plaintiff has been reduced substantially. It is further stated that the due to air pollution caused by the defendant no. 1 to 3 by using machines, breathing problem have been developed to the plaintiff which ultimately converted into a heart disease. It is further stated that plaintiff was hospitalized in the month of September, 2005 due to his heart ailment and again in the month of April, 2006. It is further stated that due to foul Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal 4 smoke coming out from the premises of defendant no. 1 to 3, the eyes of the plaintiff sour and causes irritation to the eyes of the plaintiff. It is further stated that plaintiff has spent Rs. 50,000/ in his heart treatment and much of money has been spent by the plaintiff in respect of ear treatment and eyes treatment. It is further stated that that plaintiff has also suffered harassment in the hands of the defendant for causing noise and air pollution. It is further stated that plaintiff had also lodged written complaint before different authorities however no action was taken by any of the authority against the defendant. It is further stated that the defendant no. 4 is also liable for damages as no action was taken against the defendants despite the complaint made by the plaintiff. Plaintiff by way of present suit sought damages to the tunes of Rs. 1,00,000/ alongwith interest @ 18 % p.a. Plaintiff has further sought damages to the tunes of Rs. 500/ per day from filing of the suit till defendants stop the said air and noise pollution in their factory premises. Plaintiff has also sought decree of permanent injunction that defendant no. 5 be directed to revoke the factory license, trade license of the defendants.
3. In reply thereof, written statement was filed by the defendants wherein it is stated that plaintiff has not come up with clean hands before the court and plaintiff has no locus standi to file the present suit. It is stated by the defendants that plaintiff is a tenant of defendant no. 1 for last more than two years and that defendant no. 1 has filed an application under Section 19 of Slum Area Improvement and clearance Act 1956 for permission to institute a suit for eviction of plaintiff and the said application is still Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal 5 pending. It is further stated that the present suit is merely a counter blast to the application filed by defendant no. 1. It is stated by the defendants in their written statement that plaintiff has been running the shop under the name and style of M/s New Janta Iron Store Plot No. 28, Gali No. 6, Main New Rohtak Road, Anand Parbat Industrial Area, Anand Parbat, New Delhi and he has been extending his business of LPG gas and Oxygen Gas and for that purpose he had illegally and unauthorizedly encroach upon 20 feet Municipal Road thereby blocking the same. It is further stated that in order to run the said business the plaintiff has not obtained the permission and license from the concerned authority. It is further stated that the present suit is filed by the plaintiff merely to harass the defendants. Defendants denied all the other averments as made by the plaintiff in his plaint and prayed for dismissal of the suit.
4. In reply to the written statement, replication was filed by the plaintiff wherein he denied all the other averments as made by the defendants in their written statement and reiterates those as made by him in his plaint.
5. On the basis of pleadings filed by the parties, following issues were made by the court vide its order dated 24/07/2007:
1) Whether the plaintiff is entitled for he decree of permanent inunction? OPP
2) Whether the plaintiff is entitled for the decree of damages as claimed?
OPP
Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal
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3) Relief.
6. Plaintiff in support of his case has filed power of attorney, namely, Sh Mahavir Singh who is filed his affidavit in evidence Ex. PA and relied upon the document i.e. power of Attorney Ex. PW1/X, complaint to MCD, Pollution board and SHO Ex. PW1/1, complaint dated 08.08.2002 Ex. PW1/2, Doctor Prescription Ex. PW1/3 and Ex. PW1/37 to 1/40, bills for medicine purchased by the plaintiff Ex. PW1/4 to 1/18, Ex. PW 1/21 to 1/36 and Ex, PW1/50, receipt from Caroli Cardiacs Diagnostic Center Ex. PW1/19 and Ex. PW1/46 to 1/49, bill receipts metro Golden Heart Ex. PW1/44 and 1/45, OPD Card from Saroj Hospital Ex, PW 1/38, Photographs Ex. PW1/52 to Ex. PW1/59. Plaintiff further examined one Sh. Izhar Ahmed, factory license Inspector as PW2.
7. Defendant in his defence has filed the affidavit of his son namely Ajay Kumar Jindal Ex. DW1/A and relied upon the factory linces issued by MCD Ex. DW1/1, Factory license certificate issued by MCD Ex. DW 1/2, receipt issued by Delhi Pollution control Committee Ex. DW1/3, certified copy of judgment dated 21.12.2012 Ex. DW1/4, Photocopy of judgment dated 21.02.2012 Mark A and nine photographs Ex. DW1/6 (Colly).
8. I have heard the Ld. Counsels for the parties and perused the case file carefully.
My Issue wise findings are as follows:
Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal
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ISSUE No. 1 & 2:
Whether the plaintiff is entitled for he decree of permanent inunction? OPP Whether the plaintiff is entitled for the decree of damages as claimed? OPP
9. As both the issues need common discussion of law and fact, both the above said issues are dealt with together. Burden to prove both the issues lies upon the plaintiff. It is the case of the plaintiff that defendants are running their factory adjoining to the shop of the plaintiff and defendants are using heavy machineries in their factory which causes air and noise pollution which caused serious injury to the health of the plaintiff. By way of present suit plaintiff has prayed for the damages of Rs. 1,00,000/ and further that defendant no. 5 be directed to revoke the licence of the other defendants.
10. On the other hand it is stated by the defendants that plaintiff is tenant of the defendant no. 1 and as defendant no. 1 has initiated process to remove the plaintiff from the tenanted premises, present suit is filed by the plaintiff merely to harass the defendant.
11. Before proceeding with the present case on merits, it would be relevant to discuss the law on the abovesaid issue. As discussed above, it Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal 8 is the case of plaintiff that due to noise and air pollution caused by the defendants his health is seriously affected. As such, the alleged act of the defendant as stated by the plaintiff is sort of nuisance. In Balwant Singh v. Commr. of Police, (2015) 4 SCC 801 Hon'ble Apex court while dealing with law of nuisance has observed that:
17. The law on nuisance is well settled. Nuisance in any form as recognised in the law of torts, whether private, public or common which results in affecting anyone's personal or/and property rights gives him a cause of action/right to seek remedial measures in court of law against those who caused such nuisance to him and further gives him a right to obtain necessary reliefs both in the form of preventing committing of nuisance and appropriate damages/compensation for the loss, if sustained by him, due to causing of such nuisance. (See Ratanlal Dhirajlal -- Law of Torts by G.P. Singh, 26th Edn., pp. 621, 637, 640.)
12. As observed, Nuisance as recognized under the law of torts, it gave a right to the plaintiff to obtain relief of preventing committing of nuisance and appropriate damage. For the same I may gainfully refer to observations made by Hon'ble Apex Court in Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1 Hon'ble Apex Court observed as under:
8. Winfield has defined tortious law arising from breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages. In general, torts consist of some act done without just cause or excuse.
Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal 9 "The law of torts exists for the purpose of preventing men from hurting one another whether in respect of their property, their presence, their reputations or anything which is theirs."
Injury and damage are two basic ingredients of tort. Although these may be found in contract as well but the violations which may result in tortious liability are breach of duty primarily fixed by the law while in contract they are fixed by the parties themselves. Further in tort the duty is towards persons generally. In contract it is towards specific person or persons. An action for tort is usually a claim for pecuniary compensation in respect of damages suffered as a result of the invasion of a legally protected interest. But law of torts being a developing law its frontiers are incapable of being strictly barricaded. Liability in tort which in course of time has become known as 'strict liability', 'absolute liability', 'fault liability' have all gradually grown and with passage of time have become firmly entrenched. 'Absolute liability' or "special use bringingwithitincreaseddangersto others"(Rylands v. Fletcher [LR (1868) 3 HL 330 : 37 LJ Ex 161 : [186173] All ER Rep 1] ) and 'fault liability' are different forms which give rise to action in torts. The distance (sic difference) between 'strict liability' and 'fault liability' arises from presence and absence of mental element. A breach of legal duty wilfully, or deliberately or even maliciously is negligence emanating from fault liability but injury or damage resulting without any intention yet due to lack of foresight etc. is strict liability. Since duty is the primary yardstick to determine the tortious liability its ambit keeps on widening on the touchstone of fairness, practicality of the situation etc. In Donoghue v. Stevenson [(1932) AC 562 : 1932 All ER Rep 1] a manufacturer was held to be liable to ultimate consumer on the principle of duty to care. In Anns v. Merton London Borough Council [(1978) AC 728 : (1977) 2 All ER 492] it was, rightly, observed:
"[T]he broad general principle of liability for foreseeable damage is so widely applicable that the function of the duty of care is not so much to identify cases where liability is imposed as to identify those where it is not,...."
Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal 10 Truly speaking entire law of torts is founded and structured on morality that no one has a right to injure or harm others intentionally or even innocently. Therefore, it would be primitive to class strictly or close finality (sic finally) the everexpanding and growing horizon of tortious liability. Even for social development, orderly growth of the society and cultural refineness, the liberal approach to tortious liability by courts is more conducive.
13. Before proceeding further, it is also pertinent to state in here that plaintiff never entered into witness box to depose neither subjected himself for cross examination. Affidavit was filed by son of the plaintiff on his behalf. Present case, which is filed by the plaintiff under law of torts, plaintiff deposing himself would have been the best witness, as only he could have deposed in best possible manner condition of his mental and physical health. Further It is settled principle of law that in case a party to the suit does not appear in the witnessbox in order to depose for its own case, an adverse inference can be drawn under Section 114 of Indian Evidence Act and the same is also held by Hon'ble Apex Court in Vidhyadhar v. Manikrao, (1999) 3 SCC 573: Where a party to the suit does not appear in the witnessbox and states his own case on oath and does not offer himself to be cross examined by the other side, a assumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh [AIR 1927 PC 230 : 32 CWN 119] . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh [AIR 1930 Lah 1 : ILR 11 Lah142] and the Bombay High Court in Martand Pandharinath Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal 11 Chaudhari v. RadhabaiKrishnarao Deshmukh [AIR 1931 Bom 97 :
32 Bom LR 924] . The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat [AIR 1970 MP 225 : 1970 MPLJ 586] also followed the Privy Council decision in Sardar Gurbakhsh Singh case [AIR 1927 PC 230 : 32 CWN 119] .
The Allahabad High Court in Arjun Singh v. Virendra Nath [AIR 1971 All 29] held that if a party abstains from entering the witness box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand [AIR 1974 P&H 7] drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witnessbox.
14. Be that as it may, in the present case in hand it is stated by the plaintiff that because the air and noise pollution caused by the defendant, his hearing capability has been substantially reduced and he is suffering from heart problems and he is entitle for damages from the defendants under law of torts.
15. As discussed above injury and damage are two basic ingredients of law of tort. Plaintiff has to show that
a) There was a breach of duty on the part of defendant and
b) Injury was caused to plaintiff due to such breach.
16. Considering the law stated above, in the present case in hand, it is for the plaintiff to show that :
a) Plaintiff was not entitled to run his factory in said area.
b) That air and noise pollution was caused by the defendant Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal 12
c) That injury was caused to the plaintiff due to said noise and air pollution caused by the plaintiff.
Plaintiff except for the bald averments, made by him in the plaint, has not brought on record even a single piece of substantial evidence in order to prove his case.
BREACH OF DUTY
17. Plaintiff has merely placed on record certain photographs to show that machineries were being used by the defendants in their premises. However, there is no evidence on record to show that defendants were running their factory from the said premises illegally and unauthorisedly without having any valid license from concerned authority. Further, there is no evidence to show that noise pollution and air pollution was caused due to use of machineries by the defendant to such an extent that same could have caused ear and heart problems to the plaintiff.
18. It would also be relevant to state in here that plaintiff has sought injunction that factory and trade license of the plaintiff be revoked, which goes to shows that plaintiff has admitted the fact that defendants are running their factory after obtaining proper license from the appropriate authority. Further plaintiff has examined one Sh. Izhar Ahmed, Factory License Inspector, NDMC who deposed with regard to license in favour of M/s Jindal Brothers for job work. As such, plaintiff has himself admitted and proved that work done by the defendants in their premises Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal 13 was not unauthorized or illegal rather same is done after obtaining proper license from the appropriate authority.
INJURY
19. Plaintiff has merely placed on record several medical bills in order to show that injury was caused to him. However for the reasons best known to the plaintiff, none of the said bills were proved by summoning appropriate witness and same were tendered in evidence by son of the plaintiff and not by plaintiff himself. Further, even if for the sake of arguments, the bills so filed by the plaintiff are believed to be true and correct, nothing on record is placed by the plaintiff to show that the medicines so stated in the said bills are for the treatment of ear and heart problem. Further, plaintiff has not even placed on record any medical certificate in order to show his condition, neither examined any doctor or medical expert in order to prove his averments. Furthermore, even if for the sake of arguments, it is believed that plaintiff is suffering from heart and ear disease, there is nothing on record to show that same was caused due to air and noise pollution caused by the defendants.
20. It is further pertinent to state in here that son of plaintiff in his cross examination has admitted that there can be other reasons also for the ill heath of his father. Relevant portion of the cross examination is being reproduced as under: "....The area where the shop of my father is located falls in the industrial area. Vol. The industries are situated in the back side of Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal 14 the shop situated in street no. 6 to 10. It is correct that there is heavy rush of traffic on the road in front of the shop of my father. The flyover known as Zakhira bridge was constructed around the year 19841985. It is correct that before construction of the said bridge the crossing used to remain by closed for passing of the trains and resulted into traffic jams of duration one to one and half hours. It is also correct that busses pass through the same road..."
21. It would also be relevant to state in here that son of the plaintiff during his cross examination has stated that he alongwith his father is engaged in business of iron and steel. That thereafter court appointed Sh. Sanjay Hooda as local commissioner to inspect the premises i.e. shop no. 28, Gali No. 6, New Rohtak Road, Anand Parbat Industrial Area, Delhi and file report about type of Iron Work going on in the shop. Local Commissioner was also directed to inspect the shop of the defendant and prepare inventory of material found in both the shops.
22. In compliance of the order of the court inspection was conducted by the local commissioner on the same date and report was file wherein it was stated that he found some iron plates of different shapes and oxygen cylinder lying outside the shop of the plaintiff and some iron pieces, cutting plate, weighing machine were found inside the shop of the plaintiff.
23. Objection to the said report of Local Commissioner were filed by the plaintiff wherein it is stated by the plaintiff that defendants have not allowed the said Local Commissioner to inspect the entire premises and hence the Local Commissioner was not allowed to execute the Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal 15 commission as per the court orders. It is further stated that Local Commissioner on direction of the defendants had made note of the goods lying outside the shop of the plaintiff although the same does not belong to the plaintiff. It is further stated that the Local Commissioner had not made correct inventory of goods. It is further stated that local Commissioner has falsely stated that no independent witness was found at the spot however the photographs so filed by the LC reveals that there were several persons at the spot at the time of execution of Local Commissioner.
24. Reply to the said objection was filed by the plaintiff wherein plaintiff denied the averment so made by the plaintiff to the report filed by the Local Commissioner.
25. It is pertinent to state in here that on 16.08.2012 statement of Local Commissioner was recorded wherein he has stated he was not prevented from the inspection of the suit premises by the defendants and that no objection was ever raised by either of the party at the time of inspection.
26. Although, the plaintiff has not filed any evidence in support of his objection to the report of Local Commissioner however, the perusal of the same does not go to show that plaintiff was also doing the business of cutting of iron etc.
27. Be that as it may, as it is observed that plaintiff has miserably failed to show that the defendants are doing the said business unauthorizedly and because of the defendants injury has been caused to the plaintiff, the Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal 16 relief of damage and injunction so sought by the plaintiff canot be graned to him.
In view of the same, both the above said issues are decided against the plaintiff and in favour of defendant.
Relief Considering the fact and circumstances of the case suit of the plaintiff is dismissed. Considering present circumstances of the case there is no order as to cost. File be consigned to record room after due compliance.
File be consigned to record room after compliance. Pronounced in open court on 11.12.2015 ( Anubhav Jain ) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgment is consisted of 16 pages and each page is signed by me.
Suit No. 327/14 Sh. Ram Kumar Vs. Biru Ram Jindal