Dismissed

Nissarudeen v. Anila

Kerala HC11 Jan 2024OP(C)/1547/2023

Case brief

AI extract

What is this about?

The High Court dismissed an original petition challenging interim injunction orders refusing a writ of prohibition against alleged pollution. The court held that dust accumulation was limited to specific vehicles, not general areas, licenses were valid, and Supreme Court principles on industry pollution did not automatically apply to this small-scale business. Periodic inspections were directed.

What did the court decide?

Original petition dismissed; direction to Pollution Control Board officials to conduct periodical inspections to ensure no environmental pollution is caused.

Nissarudeen Vs Anila — Environment and Pollution | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

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THURSDAY, THE 11^TH DAY OF JANUARY 2024/21ST POUSHA, 1945

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OP(C) NO.1547 OF 2023

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AGAINST THE JUDGMENT DATED 09.06.2023 IN CMA 37/2022 OF THE SUB COURT, ATTINGAL AND THE ORDER DATED 31.08.2022 IN I.A.NO.1/2022 IN O.S.No.273/2022 OF MUNSIFF COURT,ATTINGAL

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PETITIONERS/APPELLANTS/PLAINTIFFS:

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1 NISSARUDEEN, AGED 55 YEARS, S/O.MOHAMMED KASSIM, RESIDING AT ANEESHA MANZIL, CHEMPAKAMANGALAM, KORANI.P.O, VEILOOR VILLAGE, THIRUVANANTHAPURAM, PIN – 695104.

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2 SASIDHARAN, AGED 74 YEARS, S/O.MADHAVAN, RESIDING AT ARUNODAYAM CHEMPAKAMANGALAM, KORANI P.O, VEILOOR VILLAGE, THIRUVANANTHAPURAM, PIN – 695104.

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3 JIJI, AGED 43 YEARS, D/O.VASANTHA, RESIDING AT ARUNODAYAM CHEMPAKAMANGALAM, KORANI P.O, VEILOOR VILLAGE, THIRUVANANTHAPURAM, PIN – 695104.

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BY ADV G.S.REGHUNATH

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RESPONDENTS/RESPONDENTS/RESPONDENT:

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1 ANILA, AGED 31 YEARS, W/O.SANTHOSH, AVITTOM (EDAVILA VEEDU), CHEMBAKAMANGALAM DESOM, VEILOOR VILLAGE, THIRUVANANTHAPURAM, PIN – 695104.

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2 SANTHOSH, AGED 40 YEARS, H/O ANILA, AVITTOM (EDAVILA VEEDU), CHEMBAKAMANGALAM DESOM, VEILOOR VILLAGE, THIRUVANANTHAPURAM, PIN – 695104.

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BY ADVS. MUHAMMED YASIL JACKSON JOHNY(K/752/2015) M.A.AHAMMAD SAHEER(K/829/2013) E.A.HARIS(K/254/2013) DINESH R.SHENOY

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OP(C) No.1547 of 2023

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) No.1547 of 2023

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JUDGMENT

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Dated, this the 11^th January, 2024

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The plaintiffs in O.S.No.273/2022 pending before the Munsiff Court, Attingal are the petitioners herein.

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2. The said suit is one for injunction simpliciter seeking to restrain the defendants (respondents herein) from storing any metal rock

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dust, sand etc., in the plaint C schedule property, from crushing rock pieces with machineries and converting into rock powder and also, its sale by loading and unloading these articles with heavy vehicles, causing health hazards to the petitioners/plaintiffs and others, due to breathing dusty air and also from causing noise pollution. Along with the suit, the plaintiffs moved Ext.P2 interlocutory application for injunction, more or less in the

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same lines. As per Ext.P5 order, the injunction sought for was refused by the learned Munsiff. The plaintiffs/petitioners carried a C.M.A. vide Ext.P6. The same was also dismissed by the learned Sub Judge as per Ext.P7 order, which is under challenge in this Original Petition.

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3. Heard Sri.G.S.Raghunath, learned counsel for

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the petitioners and Sri.Dinesh R.Shenoy, learned counsel for the respondents.

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4. Learned counsel for the appellants submitted

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that a perusal of Ext.P4 document itself would indicate that the respondents/defendants are conducting the business of storing rock powder and transmitting it to other places, contrary to the licence granted to them. Ext.P4 was read over to point that defendants are conducting loading by using big machines, beyond the quantity stipulated in the licence and that they

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have also stored and collected other items not sanctioned. Application was submitted by the respondents claiming the business in the white category, whereas the activities going on is hazardous, rendering the business labelled under

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the red category. Ext.P4 also refers to noninstallation of water sprinklers, so as to reduce the dust pollution. Based on Ext.P4, learned counsel would submit that serious dust pollution is caused to the petitioners, as also, to the neighbours, residing in a thickly populated area. It was emphatically contended that in a thickly populated residential area, no licence to conduct the business of loading and unloading of rock powder should have been granted and that the licence was granted behind the back of the petitioners and not binding on them, apart from and independent of the fact that the licence granted was violated. Learned counsel invited the attention of this Court to

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the various provisions of the environmental protection rules.

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5. Ext.R1(a) report of the Commissioner, especially with respect to the answer to point nos.3 and 4, were relied upon, to point out that the area in question is a thickly populated residential area and that substantial dust pollution is caused on account of the activity being carried down in plaint C schedule property. On burden of proof, learned counsel relied upon a judgment of the Honourable Supreme Court in A.P.Pollution Control Board v. Prof.M.V.Nayudu (Retd.) and Others [(1999) 2 SCC 718]. Relying upon paragraph nos.36 and 39, learned counsel would urge that the burden of proof to establish that the business activity is not resulting in any pollution, is squarely upon

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the defendants/respondents based on the precautionary principle.

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6. Per contra, these submissions were refuted

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by learned counsel for the respondents. Learned counsel first invited the attention of this Court to the various misstatement of facts in the plaint. The distance between plaint A and B schedule properties of the plaintiffs and C schedule property of the defendants was stated to be 5 meters in the plaint, whereas it is 120 meters, as is decipherable from the answer given to point no.2 in Ext.R1(a) report. Another aspect highlighted is the pleading that rock crushing activity is going on in plaint C schedule property aided by machineries, which also is belied by the findings of the learned Commissioner, vide answer to point no.5 to Ext.R1(a). It was the pleading in the plaint that no precaution was taken to prevent dust pollution to the neighbouring vicinity, whereas Commissioner's report would specifically indicate, vide answer to point no.9, that iron

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sheets have been erected to prevent dust being percolated to the neighbouring locality. Besides, as many as six water sprinklers were installed to reduce the possibility of dust pollution. It is the pleading in the plaint that hundreds of loads of rock powder was being carried on, in a day to day basis, whereas the answer to point no.1, as also point no.7, would indicate that the volume of activity being conducted in plaint C schedule property is much less.

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7. Learned counsel would submit that, what is being conducted in a plaint C schedule property is a small scale business and not an industry, wherein a manufacturing activity is going on. It is true that the licence initially granted was one pertaining to the white category, which was later converted to the green category, as could be seen from Ext.R1(b). Learned counsel invited

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the attention of this Court to clause no.4.3.2 to Ext.R1(b) to indicate that there is no hazardous waste being generated as a result of the business activity conducted in plaint C schedule property. Yet another aspect pointing to the falsity of the plaint claim pointed out by the learned counsel is the pleading that the respondents/defendants is conducting the

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business activity without any licence; whereas, as a matter of fact, licences were obtained much earlier to the date of institution of the suit in June, 2022, as could be seen from Exts.R1(c) to R1(e).

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8. One important aspect emphasised by the

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learned counsel for the respondents is that apart from the two cars, which are seen referred to in point no.4 of the commission report, dust is not seen accumulated anywhere else, as per Ext.R1(a) report. The first car is that of one

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among the petitioners and the second car is that of one Sarala, who is the wife of one Roni, who chose to file a suit against the respondents earlier, canvassing similar grounds, wherein also an interim injunction was sought for. The injunction was refused, whereafter the C.M.A. preferred therefrom, was also declined. It is after the order being passed in the C.M.A that the present petitioners/plaintiffs have been set in motion by the said Roni, only with an intention to cause hardship and inconvenience to the petitioners, is the submission made by the learned counsel. The very fact that dust is not seen accumulated even in the houses of the petitioner, as also, the said Sarala, or for that that matter in any other houses or trees in the vicinity, would only indicate that there is no dust pollution, much less any serious dust pollution in the locality, as alleged in the plaint. In respect of the medical ailments to

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which the petitioners are allegedly put to, going by the plaint averments, no supporting proof is forthcoming, is the submission. It was pointed out that the business activity being conducted in plaint C schedule property is fully supported by the licences required from all statutory authority and the pre-conditions, which forms part of the licences, are adhered to

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by the respondents/defendants. Learned counsel would point out that going by Ext.R1(a) commission report, there is a house situated in between plaint A and B schedule properties and the C schedule property. Neither the owner of that house, nor anybody else in the locality, has come up with a case, alleging noise pollution or dust pollution against the respondents herein. As regards the burden of proof as enunciated in A.P.Pollution Control

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Board (supra), learned counsel for the respondents pointed out that the Honourable

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Supreme Court was considering the case of an “industry”, which is a hazardous one, belonging to the red category. Referring to paragraph no.59, the issue before the Honourable Supreme Court was pointed out, wherein the pollution potentiality of the respondent industry, which was a hazardous one, was one among the issues. The second issue pertains to the possibility of

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polluting the drinking water source to the twin cities of Hyderabad and Secunderabad, was also highlighted. It was in this context that the Honourable Supreme Court fixed the burden on the industrialist, to show that his action is environmentally benign. According to the learned counsel, these principles cannot be

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automatically applied to a small business activity being conducted in 10 cents of land, which does not amount to an industry and which

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cannot be categorised as a hazardous one. Learned counsel also contended that the suit

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itself is not maintainable in view of the bar of jurisdiction contained in the Water Prevention and Control of Pollution Act, Air Prevention and

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Control of Pollution Act and also the Environment (Protection) Act, by virtue of

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Section 58, Section 46 and Section 22 respectively of the said Acts. One final argument raised by the learned counsel is that, although there is an allegation with respect to pollution of well in the plaint schedule property, the same was not even sought to be ascertained through the Advocate Commissioner by the plaintiffs/petitioners.

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8. In reply, learned counsel for the

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petitioners emphasised that mere obtainment of the licence is not sufficient, once it is established that pollution results from the activity being conducted by the respondents. While licence is an essential pre-requisite to

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conduct the business activity, the respondents also owe a duty in law to ensure that no pollution, whatsoever, is caused to the immediate neighbours like the plaintiffs/ petitioners, so as to make their life miserable.

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9. Having heard the learned counsel appearing

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on both sides, this Court finds that no

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sufficient ground exists to interfere with the concurrent findings/conclusions of the courts below. The primary aspect, which persuades this Court to arrive at such a finding, is the fact that dust pollution is seen reported only on two cars, one parked in the house of the petitioners/plaintiffs in A schedule, and the other, in the house situated at the opposite side, which belongs to one Sarala. Contrary to the allegations made in the plaint, no filth or dust is reported to be accumulated either in the house of petitioners, or in the nearby houses,

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or for that matter, in the trees and the appurtenant premises. As regards the report of dust being accumulated in the two cars, learned counsel for the respondents pointed out that the said cars belong to persons interested in securing reliefs against the respondents. The first car, as already indicated, was found in plaint A schedule property, which belongs to the petitioners. Sarala, in whose house the second car was parked, is the wife of one Roni, who preferred a litigation against the respondents previously, on more or less similar grounds, seeking injunction alleging pollution. The interim injunction sought for was dismissed, challenging which a C.M.A was filed, which was also dismissed.

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10. According to the learned counsel for the respondents, the instant suit itself was filed pursuant to the dismissal of the said C.M.A and

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that the petitioners are persons, who are set in motion by the said Roni, the plaintiff in the other suit. This Court, within the scope of this proceedings under Article 227, is not called upon to answer the correctness of the said allegation. However, the fact which looms large is the absence of dust and filth in any other area, except the two cars, which is far from

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sufficient to establish dust pollution, especially when sweeping allegations are made in the plaint alleging serious pollution.

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11. The second aspect which weighs is that several allegations made in the plaint are not established prima facie by the Commissioner's report. As pointed out by the learned counsel for the respondents, the distance between plaint A and B schedule property of the plaintiffs and plaint C schedule property of the defendants, is only 5 meters, as per the plaint;

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whereas, the Commissioner would report that the two premises are separated by a distance of 120 meters. Serious noise pollution was alleged on the allegation that the defendants/respondents are indulging in rock crushing activity by using machines in plaint C schedule property. This aspect is also not made out in the Commissioner's report. No machine was seen installed in the premises; nor was there any noise pollution reported. It is relevant to note that the Commission taken out was an ex-parte one, without notice to the respondents. Another aspect highlighted in the plaint is with respect to the magnitude of the business being conducted in plaint C schedule property. According to the petitioners/plaintiffs, hundreds of loads of rock powder is being carried from plaint C schedule property, which is much beyond the permitted storage capacity of the respondents. Here again, the Commissioner's report is not

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supporting the plaint allegations. The learned Munsiff had dealt with these aspects in paragraph no.17 of Ext.P5 order, to find that the respondents are not stocking excess materials prima facie , as available from the records. Yet another specific allegation made in the plaint was that the respondents are conducting business without any enabling licence issued by the competent authority. This was also found to be untrue, as per the findings in paragraph no.18 order of the learned Munsiff. It was pointed out by the learned counsel for the respondents that the respondents are having all necessary licences, which are exhibited as Exts.R1(c) to R1(e), which were issued much

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prior to the institution of the suit. These aspects have a bearing on the prima facie case of the petitioners/plaintiffs.

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12. In this regard, this Court may also take

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note that the prima facie case found by the learned Munsiff in paragraph no.22 of Ext.P5 order, as also, the findings of the learned Sub Judge as regards dust pollution in paragraph no.16 of Ext.P7 order, both, are not factually

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and legally correct. As regards the findings in paragraph no.22 of Ext.P5 order, causing certain inconvenience to the petitioners/ plaintiffs

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will not, by itself, make out a prima facie case. As already indicated, accumulation of dust only on the cars parked in the petitioners'

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property, as also, in the house situated in the opposite side, will not make out a prima facie case, as regards dust pollution. The absence of dust in the buildings in the nearby vicinity, as

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also, in the trees and other appurtenances is a conspicuous aspect to be taken note of. In this regard, it appears that the findings in paragraph no.16 of Ext.P7 order by the learned Sub Judge appears to be factually incorrect as

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well, when juxtaposed with the facts reported by the Commissioner.

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13. The third aspect, again which is contrary to the pleadings in the plaint, is regarding the precautionary steps taken by the respondents/ defendants. The report of the Commissioner, vide answer to point no.9, is that on all the four sides of plaint C schedule property, iron sheets are erected to a height of 20 feet, so as to prevent the dust escaping to the nearby properties. Inside such iron sheets, green nets are established. Point no.9 is also eloquent as regards the existence of six water sprinklers, which are established at a considerable height and the Commissioner found water being sprayed from the sprinklers at the time of inspection, again to minimise the possibility of dust flying to the nearby properties. These precautionary steps, coupled with absence of filth and dust in

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the nearby houses and premises - except on the two cars aforementioned - would have a deleterious bearing on the prima facie case and balance of convenience sought to be canvassed by the plaintiffs in their favour.

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14. Finally, this Court is bound to look into the question of burden of proof as propounded by the learned counsel for the petitioners, based on the decision of the Honourable Supreme Court in A.P.Pollution Control Board (supra). Primarily, this Court is of the opinion that burden is an aspect, which is to be considered in the suit and not at the time of issuance of

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an order of interim injunction. At best, the discharge of prima facie burden can be looked into, which is precisely what we look for as part of prima facie case. Secondly, it is relevant to notice, as could be seen from paragraph no.7 of the judgment of the Supreme Court, that the

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establishment in question in the decision was an “industry”, which belong to the red category; and, one among the issues, which has been raised by the Honourable Supreme Court in paragraph

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no.59 of the judgment, was, whether the respondent industry is a hazardous one and what is its pollution potentiality, taking into account the nature of the product, the effluents and its location. The allegation therein was that the operation of the industry pollutes two lakes, supplying drinking water to the cities of Hyderabad and Secundarabad. It is in the above backdrop of industrial pollution that the Honourable Supreme Court invoked the precautionary principle and the new burden of proof, as enunciated in Vellore Citizens Welfare Forum v. Union of India and Others [(1996) 5 SCC 647]. In paragraph no.36, the Honourable Supreme Court took note of the burden being fixed on the industrialist to show that his action is

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environmentally benign, as held in Vellore case (supra). As regards the precautionary principle, the Supreme Court held in paragraph no.38 of the judgment that, when there is identifiable risk

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of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution causing threats to essential ecological processes etc., it may be appropriate

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to place the burden of proof to that person, who propose the activity, which is potentially harmful to the environment. It is difficult to invoke the said burden in the instant facts, for the reason that the activity in question herein, is not an 'industry'; and, based on the available facts on records, a conclusion that the activity is potentially harmful to the environment, cannot be arrived at. Any way, as indicated earlier, it is a matter to be taken stock of at the time of final adjudication of the suit.

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15. In the afore referred facts and

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circumstances, this Original Petition under Article 227 fails and the same would stand dismissed. However, there will be a direction to the officials of the Pollution Control Board to conduct periodical inspection, to ensure that no environmental pollution is caused, so as to jeopardise the life, rights and interest of the petitioners. This Court makes such an order, even in the absence of the Pollution Control Board in the party array, since the Pollution Control Board is enjoined by law to do the same. It is clarified that it will be open for the petitioners to take out further commission in the suit, including an expert commission, to ascertain whether the activity of the respondents in plaint C schedule property causes any pollution to the petitioners. As regards bar of jurisdiction under the three statutes referred to by the learned counsel for the

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respondents, the same is a matter to be decided by the trial court, on the event of such contention being raised by the respondents. It is made clear that the suit will be disposed of by the learned Munsiff, untrammelled by any of the observations made in this judgment.

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Sd/-

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C.JAYACHANDRAN, JUDGE

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APPENDIX OF OP(C) 1547/2023

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PETITIONERS' EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S 273/2022 BEFORE THE MUNSIFF COURT, ATTINGAL.

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EXHIBIT P2 TRUE COPY OF THE I.A NO.1/2022 IN O.S 273/2022 BEFORE THE MUNSIFF COURT ATTINGAL FOR INJUNCTION.

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EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A NO.1/2022 IN O.S 273/2022 BEFORE THE MUNSIFF COURT, ATTINGAL.

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EXHIBIT P4 TRUE COPY OF EXHIBIT-A5 (LETTER FROM THE KERALA STATE POLLUTION CONTROL BOARD) DATED 01.02.2022. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 31.08.2022 IN I.A NO.1/2023 IN O.S NO.273/2022 BEFORE THE MUNSIFF COURT, ATTINGAL.

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EXHIBIT P6 TUE COPY OF THE C.M.A 37/2022 FILED BEFORE SUB COURT, ATTINGAL.

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EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 9-6-2023 IN C.M.A 37/2022 IN O.S NO.273/2022 BEFORE THE SUB COURT ATTINGAL.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R1(A) TRUE PHOTOCOPY OF THE COMMISSIONER'S REPORT FILED BY ADV.S.HAREESH IN IA NO.2/2022 IN OS NO.273/2022, MUNSIFF'S COURT, ATTINGAL.

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EXHIBIT R1(B) TRUE PHOTOCOPY OF CONSENT TO OPERATE DATED 17/3/2022 MARKED AS EXT.B3 IN I.A. NO.1/2022 IN O.S. NO.273/2022, MUNSIFF'S COURT, ATTINGAL.

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EXHIBIT R1(C) TRUE PHOTOCOPY CERTIFICATE OF REGISTRATION DATED 4/6/2020 ISSUED TO THESE RESPONDENTS, PRODUCED AS EXT.B2 IN I.A.NO.1/2022 IN O.S.NO.273/2022, MUNSIFF'S COURT, ATTINGAL.

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EXHIBIT R1(D) TRUE PHOTOCOPY OF DEALER'S LICENSE DATED 13/8/2021, PRODUCED AS EXT.B1 IN I.A. NO.1/2022 IN O.S.NO.273/2022, MUNSIFF'S COURT, ATTINGAL. EXHIBIT R1(E) TRUE PHOTOCOPY OF LICENSE ISSUED BY MANGALAPURAM GRAMA PANCHAYATH DATED 22/5/2020 TO THE RESPONDENTS. EXHIBIT R1(F) TRUE PHOTOCOPY OF COMMISSION REPORT SUBMITTED BY ADVOCATE COMMISSIONER SHIBU A., DATED 5/1/2022 FILED IN O.S. NO.527/2021, MUNSIFF'S COURT, ATTINGAL. EXHIBIT R1(G) TRUE PHOTOCOPY OF ORDER DATED 20/1/2022 IN IA NO.2/2021 IN OS NO.573/2021, MUNSIFF'S COURT, ATTINGAL.

Nissarudeen v. Anila

Case brief

What is this about?

What did the court decide?

Nissarudeen v. Anila

Case brief

What is this about?

What did the court decide?

What the court decided

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