Allowed

Sri. Dwarkanath G v. M/S Multi Pearl Apartment Owners Association

Karnataka HC7 Mar 2024MFA/1090/2024

Case brief

AI extract

What is this about?

Apartment owner appealed rejection of interim injunction against wet waste processing on the building terrace causing smell, flies and nuisance. The High Court held the trial court erred in relegating him to statutory authorities, allowed the appeal, set aside the order, and restrained terrace waste processing pending suit.

What did the court decide?

Impugned order dated 07.12.2023 set aside; defendants restrained from storing, collecting or processing wet/dry waste on the terrace until disposal of the suit; liberty to shift plant to enclosed grou

Sri. Dwarkanath G Vs M/S Multi Pearl Apartment… — Environment and Pollution | Karnataka HC (2024)

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- 1 - NC: 2024:KHC:9676 MFA No. 1090 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ MISCELLANEOUS FIRST APPEAL NO. 1090 OF 2024 (CPC)

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BETWEEN:

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SRI. DWARKANATH G AGED ABOUT 56 YEARS S/O LATE B.K. GOVINDARAJULU R/AT FLAT NO.G (NEW NO.407) 3^RD FLOOR, MULTI PEARL APARTMENT, NO.459/5, NAGAWARA VILLAGE, BENGALURU NORTH TALUK, BENGALURU-560045.

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…APPELLANT

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(BY SRI. NARASIMHA PRASAD S.D., ADVOCATE)

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AND:

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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M/S MULTI PEARL APARTMENT OWNERS ASSOCIATION MULTI PEARL APARTMENT, NO.49/5, NAGAWARA VILLAGE, BENGALURU NORTH TALUK, BENGALURU-560045 REPERSENTED BY ITS PRESIDENT SRI OM PRAKASH RESIDINT AT NO.107 MULTI PEARL APARTMENT

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M/S MULTI PEARL APARTMENT OWNERS ASSOCIATION MULTI PEARL APARTMENT NO.49/5, NAGAWARA VILLAGE, BENGALURU NORTH TALUK, BENGALURU-560045 REPRESENTED BY ITS SECRETARY SRI. M.N. NAGARAJ RESIDING AT NO.202 MULTI PEARL APARTMENT

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…RESPONDENTS

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(BY SRI. P.R.RAMAPPA, ADVOCATE)

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2 - NC: 2024:KHC:9676 MFA No. 1090 of 2024

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 07.12.2023 PASSED ON IA NO.1/2023 IN O.S.NO.25016/2022 ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL, BENGALURU, (CCH NO.29), DISPOSING IA NO.1/2023 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC, WITH A LIBERTY TO THE PLAINTIFF TO WORKOUT HIS REMEDY BEFORE STATUTORY AUTHORITY IN ACCORDANCE WITH LAW.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The plaintiff in O.S.No.25016/2022 on the file of the XXVIII Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru (henceforth referred to as 'Trial Court') has filed this appeal challenging an order dated 07.12.2023 by which, an application (I.A.No.1/2023) filed by him under Order XXXIX Rules 1 and 2 read with Section 151 of CPC was disposed off reserving liberty to work out other remedies before the statutory authorities.

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The suit in O.S.No.25016/2022 was filed for declaration that establishment of the wet waste management plant by the defendants on the terrace of the building is illegal and for mandatory injunction to shut the wet waste plant

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NC: 2024:KHC:9676 MFA No. 1090 of 2024

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established by the defendants on the terrace and to stop the composting of wet waste on the terrace.

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The plaintiff claims that he is the owner of a duplex flat on the top floor of a multi dwelling residential apartment, having purchased it from the developer on 01.04.2019. He contends that the defendants had established a wet and dry waste compost system in the stilt floor, which was meant for car parking. As the waste management system attracted flies and other insects and emanated foul smell, the residents at the Annual General Body Meeting held in the year 2018-19 decided to establish the composting unit on the terrace. The plaintiff contends that the wet and dry waste was collected in bins and carried to the terrace by using the only lift available in the apartment. He contends that this composting on the terrace was causing terrible health hazards to him and his family members and despite a complaint to the defendants, the Committee members did not take any positive steps to ease the problem faced by the plaintiff. He also contends that waste is managed without using equipments but is exposed to the air by spreading it on the terrace floor resulting in attracting insects and foul smell. He also contends that the defendants

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took the help of an agency to identify the foul smell in the house of plaintiff, who reported by its email dated 07.07.2021 that there were worms and flies seen in the house of the plaintiff and that the bad odor in the house of the plaintiff was from the composting unit. He contends that the defendants without coming up with a serious solution, came up with another idea to put up GAIA Drums and upgrade AAGA wet waste management work, which did not solve the problem. Therefore, the plaintiff lodged a complaint before the Bruhat Bengaluru Mahanagara Palike (BBMP) who did not take any action. He contends that since there were less than 50 flats in the building, the apartment owners were not required to manage the dry and wet waste management, as it was the duty of the BBMP to collect the dry and wet waste. However, the defendants were insisting upon processing the wet waste on the terrace of the building, thereby causing health hazard to him and his family. During the pendency of the suit, the plaintiff approached the Karnataka State Pollution Control Board, who held a discussion with the office bearers of the defendants and after examining the way in which the wet waste and dry waste was managed by the defendants, directed the

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defendants to provide wet waste processing facility on the ground floor by providing separate room and also not to discharge leachate into drainage. The plaintiff therefore filed the suit for the reliefs mentioned above.

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The plaintiff filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of CPC for interim injunction restraining the defendants from carrying out or continuing or operating the activities of the wet waste management system on the terrace floor of the suit schedule property.

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The defendants filed their written statement and contended that the wet waste management system is not on the terrace of the house of the plaintiff but about 35 feet away. They contended that there was no smell or flies in the house of the immediate neighbour of the plaintiff. They contended that BBMP had suspended collection of dry and wet waste from the apartment and therefore, it had become necessary for the defendants to choose an alternative method to dispose the waste. Consequently, they installed dry and wet waste management system on the terrace of the building. They

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contended that the wet waste management system was installed on the terrace during the year 2017, which was known to the predecessor in title of the plaintiff, who did not raise any objections and therefore, the plaintiff knowing fully well that the waste management system was installed on the terrace, had purchased the flat. Hence, they contended that the principle of caveat emptor was applicable to the plaintiff also. They also contended that except the plaintiff, no other residents had any objection or complaint against processing of waste on the terrace. With these and many other contentions, the defendants justified the processing of waste on the terrace of the building.

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The Trial Court considered the application filed by the plaintiff for interim injunction and even after noticing that the Karnataka State Pollution Control Board had ordered the defendants to shift the organic waste processing facility to the ground floor, disposed off the application directing the plaintiff to avail such other remedy as are available in law.

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Being aggrieved by the said order, the plaintiff has filed this appeal.

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The learned counsel for the plaintiff reiterated the contention as above and placed on record the photographs showing the unscientific way in which, the waste is processed on the terrace of the building. He contends that the waste is strewn on the terrace and is exposed to air and sunlight and is thereafter, dumped in bins so that it is converted into manure. He contends that this unscientific way of processing the wet waste has exposed the plaintiff to untold hardship and inconvenience and the defendants have not even respected or complied the order passed by the Karnataka State Pollution Control Board, but are continuing to process the wet waste on the terrace.

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Per contra, the learned counsel for the defendants submitted that the plaintiff has purchased flat only in the year 2019, while wet waste management on the terrace floor was installed in the year 2017 and therefore, the plaintiff has taken the risk of purchasing a property despite knowing the fact that the waste management is done on the terrace of the building. He also contends that the plaintiff himself admitted that the defendants have no technical competence to handle the wet waste. He contends that the defendants have taken all possible

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care to ensure that no discomfort and inconvenience is caused to any of the residents of the apartment. He further contends that the order of the Karnataka State Pollution Control Board is passed at the behest of the plaintiff as no other resident of the apartment has complained. With these and many other similar such contentions, he opposed the appeal and contended that no hardship would be caused to the plaintiff. On the contrary, he contends that if the waste management on the terrace is stopped, all the residents would be put to hardship.

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I have considered the submissions made by the learned counsel for the plaintiff as well as the learned counsel for the defendants.

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The defendants did not dispute the fact that the wet waste management is installed on the terrace of the building. They also did not dispute that the building comprised of about 36 flats and that the building has only one lift, which is used not only by the residents but also for all other purposes including the movement of wet and dry waste from the ground floor upto the terrace floor. The plaintiff is residing in the top floor of the building, meaning thereby that he could be exposed

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to the foul smell that may emanate while processing the wet waste. It is also not improbable that due to the unscientific way of processing the wet waste, it could attract flies and insects resulting in a perpetual nuisance to the plaintiff and his family members. The contention of the defendants that no other residents of the apartment has complained, is of no consequence, as the plaintiff has approached the Court complaining nuisance caused to him and his family members due to unscientific management of the wet waste. Therefore, the defendants cannot ignore the grievance expressed by the

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plaintiff. It is also seen from the order passed by the Karnataka State Pollution Control Board that a discussion was held with the office bearers of the defendants and it was advised to shift the wet waste management to a separate closed room in the ground floor. The defendants did not explore possibility of doing it. It is also found that the defendants were discharging leachate into BWSSB drainage, which also would emanate foul smell and caused nuisance not only to the apartment owners but also to the residents nearby. In that view of the matter, the impugned order passed by the Trial Court directing the plaintiff to approach the statutory

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authorities was not justified. On the contrary, the Trial Court must have passed an order of injunction restraining defendants from processing the wet waste on the terrace of the building.

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In view of the above, this appeal is allowed . The impugned order dated 07.12.2023 passed by the XXVIII Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru in O.S.No.25016/2022 is set aside. The defendants are restrained from storing, stocking, collecting wet/dry waste either in open or in drums on the terrace of the building or processing it in any manner on the terrace until disposal of the suit before the Trial Court. It is open for the defendants to shift the processing plant to either ground floor within an enclosed space or to shift the wet and dry waste outside the building for being processed at any other location.

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Sd/JUDGE

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PMR

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List No.: 1 Sl No.: 18

Sri. Dwarkanath G v. M/S Multi Pearl Apartment Owners Association

Case brief

What is this about?

What did the court decide?

Sri. Dwarkanath G v. M/S Multi Pearl Apartment Owners Association

Case brief

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