Remanded

P.Sujatha v. K.Anilkumar

Kerala HC3 Jan 2014RSA/629/2010

Case brief

AI extract

What is this about?

This regular second appeal arises from a suit seeking an injunction against a brassiere manufacturing unit operating near a hospital. The High Court set aside lower judgments, admitted late evidence of licenses, and remanded the case to ascertain compliance with pollution norms and ownership timelines.

What did the court decide?

The judgment of the courts below is set aside; the suit is remanded for further adjudication using newly marked evidence and a commission.

P.Sujatha Vs K.Anilkumar — Property and Title | Kerala HC (2014)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

¶4

FRIDAY, THE 3RD DAY OF JANUARY 2014/13TH POUSHA, 1935

¶5

RSA.No. 629 of 2010 ( )

¶6

----------------------------------AGAINST THE JUDGMENT IN AS 43/2007 of PRL.SUB COURT, KOZHIKODE DATED 20.10.2009

¶7

AGAINST THE JUDGMENT IN OS 89/2004 of PRINCIPAL MUNSIFF COURT-I, .KOZHIKODE-I DATED 26.09.2006

¶8

APPELLANT(S)/APPELLANTS/APPELLANTS/DEFENDANTS::

¶9

1. P.SUJATHA, AGED 47 YEARS W/O.RAJAN, `TWINTU BRASSIERS' CHELAMKULANNGARA THAZHAM, KANNANKARA AMSOM DESOM CHELANNUR, KOZHIKODE.

¶10

2. P.K.RAJAN, AGED 55 YEARS, `TWINTU BRASSIERS', CHELAMKULANGARA THAZHAM KANNANKARA AMSOM DESOM, CHELANNUR, KOZHIKODE.

¶11

BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH

¶12

RESPONDENT(S)/PLAINTIFFS::

¶13

1. K.ANILKUMAR, AGED 44 YEARS S/O.NARAYANA NAMBIAR, `KRISHNA' KANNANKARA AMSOM AND DESOM, CHELANNUR, KOZHIKODE.

¶14

2. DR.SUSHAMA, AGED 43 YEARS, W/O.ANILKUMAR, `KRISHNA', KANNANKARA AMSOM AND DESOM CHELANNUR, KOZHIKODE.

¶15

R,R1-2 BY ADV. SRI.GRASHIOUS KURIAKOSE

¶16

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

das

¶18

N.K.BALAKRISHNAN, J.

¶19

========================== R.S.A. No. 629 of 2010

¶20

===================================

¶21

Dated this the 3^rd day of January, 2014

¶22

JUDGMENT

¶23

Defendants are the appellants. The suit was filed, seeking leave of the court under Sec.91 of CPC, for :-

¶24

(A) declaration that the activities of the 1^st and 2^nd defendants carried on in the plaint “A” schedule in their residential house No. CP 10/395 is a wrongful act liable to be obviated and injuncted;

¶25

(B) consequential permanent prohibitory injunction restraining the defendants 1 and 2 and their accomplices from carrying on the complained wrongful acts of running a factory/industry engaged in the manufacture of brassieres etc. using power and employing several men in the plaint “A” schedule property illegally, unlawfully and unauthorized in such manner as to cause nuisance endangering public health, hygiene and tranquility and without obtaining the statutorily required license/permit from all authorities concerned.

¶26

(C) consequential permanent prohibitory injunction restraining the defendants 1 and 2 and their accomplices from interfering with or disturbing the plaintiffs' peaceful occupation, possession, user and enjoyment of the pliant “B” and “C” schedule properties and from disturbing or otherwise injuring the plaintiffs' lawful and authorized activities therein including the running of the Chelannur General Hospital.

¶27

-: 2 :-

¶28

R.S.A.No.629/2010

¶29

The main contention that was raised by the plaintiffs was that defendants have started running Brassier Manufacturing Unit by name Twintu Brassieres, without obtaining licence from the Panchayath and clearance from the Pollution Control Board. Plaintiffs are running hospital in the plaint schedule property. There is a Thodu (water channel) separating the plaint schedule property from the property of defendants. It is situated on the southern side of the plaint schedule property. Defendants denied the contentions raised by the plaintiffs. The contention that the operation or running of the brassier manufacturing unit is creating sound pollution was denied. It was contended by defendants that only six employees were working in the said unit and that some students were also there for learning stitching etc. in the tailoring unit by name Suja Tailoring Unit.

¶30

An advocate commissioner inspected the plaint schedule property and Exts.C1 report and C1(a) plan were

¶31

-: 3 :-

¶32

R.S.A.No.629/2010

¶33

filed. Ext.C1(a) plan shows the lie and position of the hospital and the hospital compound on the southern side. The building occupied by the defendants, in a portion of which tailoring unit and the brassier manufacturing unit are functioning is also noted. When the advocate commissioner inspected, motorised sewing and cutting machines which run on power were seen in the house.

¶34

Another report and sketch were also obtained and those were marked as Ext.C2, C2(a) and C2(b). Ext.C2(a) is the report filed by the Chief Environmental Engineer, where it was reported that the unit owned by the first defendant/first appellant was located in Ward No.10 of Chelannur Panchayat -Re survey No.176/1B of that village. The hospital was seen to be only 5 mtrs. away from the southern side of the unit. A natural stream was found flowing in between the boundaries of the hospital and the unit. It was reported that the unit was engaged in making of brassieres by using 19 numbers of sewing machines, out

¶35

-: 4 :-

¶36

R.S.A.No.629/2010

¶37

of which 14 numbers were provided with electric motors. 8 numbers of machines are on motors on which 1/12 H.P was displayed whereas 6 numbers of machines were stated to be run on motors of which H.P was not displayed. It was represented by the owner of the unit that each motor was being run using 0.5 H.P. 5 machines were used without motors. It can not be disputed that all the machines will not be put to use at a time. As such the total sound (dB) emanated will be far less than the one permitted even for the silent zone, the learned counsel for the appellant submits.

¶38

Since the hospital is being run, it was treated as a silent zone, where the permitted sound level during day time is 50 dB and during night hours it is only 40 dB. The report shows that the noise level recorded on the southern boundary of the unit was 53.2 to 63.1 dB. It was contended by the defendants that background noise at the premises was seen to be 57.6 to 60.09 dB. It was also reported in

¶39

-: 5 :-

¶40

R.S.A.No.629/2010

¶41

Ext.C2(b) report of the Environmental Engineer thus:

¶42

“Not much variation in the back ground noise (while the sewing machines are not functioning) and the noise level while the working of the unit could be noticed. This has happened due to the sound contributed by the flowing water in the drain.”

¶43

6. It was opined by the Commissioner/Chief

¶44

Environmental Engineer:

¶45

“However in order to eliminate the chances of sound pollution problems to the hospital due to the working of the brassier unit, it is suggested that closing down the windows on the southern side of the unit permanently with suitable material will reduce the noise level.

¶46

Further the unit is required to obtain consent of the Board under the Air (Prevention & Control of Pollution) Act, 1981. Since the unit has so far not obtained consent of the Board, necessary order may please be placed in this regard.”

¶47

7. Considering the entire evidence the trial court

¶48

decreed the suit as follows:

¶49

It is hereby declared that the activities of defendants in plaint A schedule property (building bearing No.X/395A) is a wrongful act liable to be injuncted.

¶50

Defendants or their men are hereby restrained by a decree of prohibitory injunction from functioning the factory unlawfully without obtaining required license or permit from the authorities concerned.

¶51

Defendants are also restrained from interfering with the peaceful possession and enjoyment of plaint B and C schedule properties by plaintiffs or interfere in the functioning of

¶52

-: 6 :-

¶53

R.S.A.No.629/2010

¶54

Chelannur General Hospital run by defendants.

¶55

In the appeal filed by the appellants the appellate court held:

¶56

“Since the finding entered by the trial court is on the basis of clear evidence regarding violation of statutory provisions and pollution control Rules, this court find absolutely no reason to interfere with the decree passed by the trial court granting prohibitory injunction restraining the appellants from conducting a manufacturing unit of Brassieres in plaint A schedule property.”

¶57

But it was further observed by the appellate court “it is for the appellants to obtain proper permission and licence from the local body, Industrial Department and Pollution Control Board to start a manufacturing unit.”

¶58

The learned counsel appearing for appellants submits that photo copy of the certificate issued by the District Industries Centre was seen produced before the trial court along with the counter statement. The original was not seen produced. The certificate was not got marked before the trial court. According to the learned counsel, had these documents (certificate issued by the District

¶59

-: 7 :-

¶60

R.S.A.No.629/2010

¶61

Industries Centre) been produced and marked certainly it could have been found that the unit was granted permission/certificate long prior to the commencement of the hospital in the plaint schedule property. That hospital admittedly came into being only in 1999 where as the certificate would show that it was originally issued in 1988. But at that time, it was issued in respect of building No.8/95 of Chelannur Panchayath, but subsequently it was shifted to the building bearing No.10/195(a).

¶62

The learned senior counsel appearing for respondents would submit that this document cannot be pressed into service at this stage and if as a matter of fact, appellants had been in possession of the documents there was no justification for not producing those documents. It is further submitted that the building number mentioned in the certificate must be in respect of some other building. For that purpose, the learned senior counsel also refers to the number of the building mentioned in the commissioner's

¶63

-: 8 :-

¶64

R.S.A.No.629/2010

¶65

report. The learned counsel for the appellants would submit that the number shown in the commissioner's report should necessarily be a mistake since even according to the plaintiff, defendants are running the unit in the just adjacent compound. Appellants also want to produce another document dated 02.04.1988 which also is in line with the certificate just referred to above.

¶66

It is further contended that in the light of the direction issued by the appellate court, permission was obtained from the Pollution Control Board. That document also has been produced now. The learned counsel for appellants submits that in the particular factual scenario these documents may be received in evidence. The application for reception of documents filed under Order 41 Rule 27 has been strongly opposed by the learned senior counsel for respondents. The copy of the document was produced along with the counter statement. The certificate from the Pollution Control Board was obtained and

¶67

-: 9 :-

¶68

R.S.A.No.629/2010

¶69

produced in the light of the direction or observation made by the lower appellate court. Though original documents were not produced earlier, I find that for the proper adjudication of the issue, these documents are to be received in evidence. Of course the respondents herein (plaintiffs) can produce counter documents, if any.

¶70

One more aspect, also may have to be considered. In Ext.C2(a) report, it was directed that the window on the southern side of the building occupied by the defendants should be closed permanently. Whether that contention has been complied with has to be ensured by taking out a commission. The certificate issued by the Pollution Control Board and also the certificate issued by the District Industrial Centre (showing SSI registration) pertaining to the building where brassier manufacturing unit is run are also to be gone into. Whether that certificate pertains to this building also may have to be ascertained getting a report from the advocate commissioner. Hence, documents

¶71

-: 10 :-

¶72

R.S.A.No.629/2010

¶73

produced before this court as per I.A.3136/2013 are received. These documents are marked as Exts.B8 to B10.

¶74

In the result, this RSA is disposed of as stated

¶75

below.

¶76

The judgment rendered by the courts below are set aside and the suit is remanded to the trial court for the purpose as stated below. The appellants have to convince the trial court whether the defendants have complied with the directions given by the lower appellate court. The appellants have to take out commission to prove the facts referred to earlier. Respondents/plaintiffs can also get any other factor to be noted by the advocate commissioner by filing applications or work memo. When actually the hospital started functioning in the suit property and as to when the brassier manufacturing unit was started in the adjacent property (belonging to the defendants) are also to be got ascertained with reference to the documents already produced and the documents now produced by the

¶77

-: 11 :-

¶78

R.S.A.No.629/2010

¶79

appellants. If the conditions stated by the appellate court are seen fulfilled or if the Brassier Manufacturing Unit had started functioning (using electric motors) in the building adjacent to the suit property prior to the starting of Hospital then the decree for injunction granted by the lower courts will stand vacated unless the plaintiff establishes that noise level had subsequently increased.

¶80

Parties will mark their appearance before the court below on 29.01.2014.

¶81

Sd/- N.K.BALAKRISHNAN, JUDGE

¶82

das

¶83

// True copy // PA to Judge

P.Sujatha v. K.Anilkumar

Case brief

What is this about?

What did the court decide?

P.Sujatha v. K.Anilkumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Arun Shankar Vs Mustang Motors Pvt. Ltd.

Josily Elizabeth Thomas Vs Marykutty Thomas

Pankajakshy Amma Vs Lakshmi Amma

Aji Kumar Vs Balakrishnan Nair

K.Sukumaran Vs Ambika

E.K.Sunilanalan Vs Sree Narayana Bhaktha Paripalana Yogam