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A.R. PONNUSAMY. ..DEFE versus THOPPALAN @ KARUPPA GOUNDER. ..PLAI

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A.R. Ponnusamy. ..Defe v. Thoppalan @ Karuppa Gounder. ..Plai - Civil Revision Petition (PD)No. 797 of 2002 [2003] RD-TN 233 (21 March 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated: 21/03/2003

Coram

The hon'ble Mr. Justice P. SATHASIVAM

Civil Revision Petition (PD)No. 797 of 2002

and Civil Revision Petition (PD) No.1751 of 2002 and

C.M.P.Nos. 6358 and 14922 of 2002

A.R. Ponnusamy. ..Defendant/Petitioner in both C.R.Ps. -Vs-

Thoppalan @ Karuppa Gounder. ..Plaintiff/Respondent in both C.R.Ps. Revision petitions under Section 115 of C.P.C., and under Article 227 of the Constitution of India respectively, against the order dated 12-4-2002 passed in O.S.No.516/99 on the file of the Addl. District Munsif, Namakkal; and against the order dated 26-8-2002 in I.A.No. 874/99 in O.S.No. 516/99 on the file of the same Court respectively.

For Petitioner in both C.R.P.s. : Mr. M. Venkatachalapathy, Senior counsel for M/s M. Sriram For Respondent in both C.R.Ps. : Mr. K. Yamunan :COMMON ORDER



Since the issue raised in both the Revision Petitions is one and the same, they are being disposed of by the following common order. Defendant in O.S.No. 516 of 1999 on the file of the Additional District Munsif, Namakkal, aggrieved by the order dated 12-4-2002 passed in the suit, holding that the District Munsif's Court has jurisdiction to try the issue raised, has filed C.R.P.No. 797/2002 under Section 115 of the Code of Civil Procedure. 2. The very same petitioner, aggrieved by the order of the same Court dated 26-8-2002 in I.A.No. 874/99 in O.S.No. 516/99, granting injunction and continuing the same without taking up the injunction application, has filed C.R.P.No. 1751/2002 under Article 227 of the Constitution of India. 3. According to the plaintiff/respondent herein, he filed a suit in O.S.No. 516 of 1999 on the file of the District Munsif, Namakkal, against the defendant/petitioner herein for permanent injunction, restraining him (defendant/petitioner herein) from carrying on the business of stone crushing by using the stone Crushers in S.No.204 /4A of Marurpatty village. In the said suit, the respondent contended that if the petitioner operates the crushing unit in S.No. 204/4A, it will generate dust pollution and due to the same the respondent and his family members will be put to great hardship, inconvenience and loss. Further, the petitioner has not obtained any order from the Tamil Nadu Pollution Control Board; hence the petitioner is not entitled to carry on the operation. The respondent herein filed I.A.No.874/99 and obtained an order of injunction on 25-8-99. The respondent has no right to file a civil suit against the crushing unit which has obtained consent from the Tamil Nadu Pollution Control Board for running the unit by complying with the terms and conditions of the Board. In view of the bar under the Act, the person aggrieved can file a complaint only before the appropriate authority constituted under the Act. The learned District Munsif has framed the issue of maintainability of the suit as a preliminary issue as to whether the court has jurisdiction to try the suit. As against the order of the District Munsif, in the preliminary issue, the petitioner has filed C.R.P.No. 5 72/2001 before this Court. By order dated 20-7-2001, this Court dismissed the said Revision holding that the suit is maintainable. The dismissal of the earlier C.R.P. will not inhibit the petitioner from seeking the legal remedy that is available to him. It is also stated that though the learned District Munsif granted an injunction on 25-8 -99 and even after filing his counter on 20-1-2000, the trial Judge without taking the injunction application for enquiry and dispose of the same, is extending the injunction order without any valid reason and thereby preventing the petitioner from running the crushing unit. In C.R.P.No. 797/2002 the petitioner has claimed that the Court below has no jurisdiction to hear the main suit namely O.S.No.516/99. In C.R.P.No.1751/2002 the very same petitioner has claimed that in any event the Court below was not justified in keeping the injunction application, particularly even after filing of the counter affidavit. 4. Heard Mr. M. Venkatachalapathy, learned senior counsel for the petitioner and Mr. K. Yamunan, learned counsel for respondent. 5. The following questions are to be considered in these Revisions: (i) Whether the suit filed by the respondent-plaintiff is barred under Section 46 of the Air (Prevention and Control of Pollution) Act, 1981? (ii) In any event, whether the Court below was justified in keeping the injunction application namely I.A.No.874/99 without disposing of the same one way or other?

6. The plaintiff/respondent herein has filed O.S.No.5 16 of 1999 on the file of the District Munsif, Namakkal against the defendant/petitioner herein for permanent injunction restraining the defendant from carrying on business of stone crushing by using stone crushers in S.No. 204/4A of Marurpatti village. It is the grievance of the petitioner that inasmuch as the relief prayed for flows from the Pollution Control Act, the Civil Court is not the proper Forum. It is also his case that the Court below has omitted to consider that the cause of action for the suit is the running of the stone crushing unit by the petitioner in Survey No. 204/4A in Marurpatti village, resulting in pollution of air and on this ground the injunction is sought for which cannot be gone into by the Civil Court. On the other hand, it is the claim of the respondent that the very same issue namely ousting of Civil Court jurisdiction by the provisions of Air ( Prevention and Control of Pollution) Act, 1981 was considered and rejected by the lower Court and upheld by this Court, the present objection is not maintainable. Apart from the said aspect, it is stated that the trial court, by order dated 3-1-2001, while considering the very same issue, has held that suit is maintainable in the Civil Court and the Revision filed buy the petitioner before this Court in C.R.P.No. 5 72/2001 was also dismissed on 20-7-2001. In the light of the said order of the trial Court and the affirmation by this Court, the petitioner is not entitled to raise the same objection once again.

7. In the light of the various averments, I have carefully perused the plaint averments in O.S.No.516 of 99 and the order of the trial Court holding that the suit is maintainable. Learned senior counsel for the petitioner, by drawing my attention to Section 46 of the Air (Prevention and Control of Pollution) Act, 1981 ( hereinafter referred to as "the Act"), would contend that inasmuch as the issue relates to air pollution, the Authority under the Act alone is competent to consider the same and by virtue of Section 46, the jurisdiction of the Civil Court is completely barred. In order to appreciate the said contention, it is useful to refer Section 46: "Section 46. Bar of jurisdiction:- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an Appellate Authority constituted under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."

It is clear from the above provision that in respect of any matter which an Appellate Authority in this Act is empowered, Civil Court has no jurisdiction to entertain any suit and no injunction shall be granted in respect of any action taken or to be taken by the Authority concerned. Though prior to the filing of the suit, the plaintiff was having permission from the Pollution Control Board to use Crusher, admittedly, on the date of the suit, he was not having any order from the Board. In such a circumstance, as rightly contended by the learned counsel for the respondent, the plaintiff has to approach the Civil Court to vindicate his grievance, if any, relating to air pollution. Sections 3 and 4 of the Act enable to form Central Pollution Control Board and State Pollution Control Board respectively. The powers and functions of the Boards have been specifically stated in various sections of Chapter II and III. As per Section 21, no person shall, without the previous consent of the State Board establish or operate an industrial plant in an air pollution control area. As per Section 31 (1), any person aggrieved by an order made by the State Board may, within 30 days from the date on which the order is communicated to him, prefer an appeal to the Appellate Authority. As rightly pointed out by the learned counsel for the respondent, those matters which the Appellate Authority is empowered to decide, the jurisdiction of the Civil Court is taken under Section 46 of the Act. I have already referred to the fact that on the date of the suit, the defendant was not having any order from the Pollution Control Board or from any Authority under the Act. As per Section 46, if there is an order by the Authority concerned, either by the State Board or by any one, the aggrieved person cannot challenge the same before the Civil Court and the only remedy for him is to approach the Appellate Authority under the Act to vindicate his grievance and not all matters are barred under Section 46 of the Act. Mr. K. Yamunan, learned counsel for the respondent, has very much relied on a decision of the Andhra Pradesh High Court in M/s. Sreenivasa Distilleries v. S.R. Thyagarajan, reported in AIR 1986 Andhra Pradesh 328. A learned Single Judge of the Andhra Pradesh High Court, while considering Section 58 of the Water ( Prevention and Control of Pollution) Act (Act 6/1974), which is similar to Section 46 of the Air Act, has held that Section 58 does not bar jurisdiction of a civil Court to entertain such a suit. Section 58 of the Water (Prevention and Control of Pollution) Act bars the jurisdiction of the Civil Court to entertain any suit or proceeding against an order passed by the appellate authority. While construing the said provision, the learned Judge has held as follows: (para 4)

"4?.Section 58 enacts two prohibitions. Firstly, not to entertain any suit or proceedings in respect of any matter which the appellate authority constituted under the Act is empowered to determine. Secondly, no injunction shall be granted in respect of any action taken by any authority under the Act in pursuance of the provisions of the Act. This is the only provision barring the jurisdiction of a Civil Court. The section is intended to prese5rve the statutory protection given to the Boards untouched by civil actions. Now, the present action is only preventing the defendant from polluting water. But this section is not directed to annul any orders passed by the authority constituted under this Act. Now, it is admitted that no orders are passed under the Act, and, therefore, any order passed by the Civil Court will not take away the jurisdiction of the authorities constituted under the Act?.." There is no dispute that Section 58 referred to in the above decision is similar to Section 46 of the Air (Prevention and Control of Pollution) Act, concerned in the case on hand. As rightly observed by the learned Judge, the section is intended to preserve the statutory protection given to the Boards untouched by civil actions. In the absence of any order by the Board or intervention by the Authority under the Act, any order passed by the Civil Court will not take away the jurisdictional aspect constituted under the Act. I am of the view that matters which are not to be agitated before the appellate authority, the Civil Court has jurisdiction to entertain and consider the same.

8. Apart from the above legal position, it is seen that working of the Stone-Crushing unit in S.No. 204/4A will be environmental hazard and a source of air pollution, affecting the health of the people residing in the locality. It is highlighted by the respondent herein that when the petitioner wanted to re-commission the unit, several objections were raised by various people, including the Panchayat Union and the respondent, that one Selvakumar, whose house is situate about 100 metres from the crushing unit, also objected to the same and that on a consideration of all these objections and after inspecting the site, the Tamil Nadu Pollution Control Board directed the petitioner not to recommence the unit at the existing site and refused to renew the consent order. It is also brought to my notice that the Commissioner, Namakkal Panchayat Union has cancelled the licence of the petitioner and the Tamil Nadu Electricity Board has disconnected the service connection to the crushing unit. Further, in the light of the specific objection raised in the written statement regarding maintainability of the suit, the learned Additional District Munsif, Namakkal framed a preliminary issue regarding jurisdiction and after full-fledged enquiry, came to the conclusion that Civil Court has jurisdiction to try the suit. Against the said order, the petitioner herein preferred C.R.P.No. 572/2001. Here again, elaborate arguments were advanced by both sides regarding bar of Civil Court's jurisdiction. This Court (Prabha Sridevan, J) by order dated 20-7-2001, after considering the matter in issue in detail with reference to the provisions, namely, Section 2 (a) (b), Sections 31 and 46 of the Act and the ultimate conclusion of the trial Court, confirmed the decision of the trial Court holding that Civil Court has jurisdiction, and dismissed the Revision finding no ground for interference. No doubt, the learned Judge has observed that the dismissal of the C.R.P (C.R.P. No.572/2001) will not inhibit the petitioner from seeking the legal remedy that is available to him under law. After the order of this Court in C.R.P.No. 572/2001 dated 20-07-2001, confirming the order of the Court below stating that suit is maintainable in the Civil Court, the petitioner filed an additional written statement on 19-2-2002 and again raised the same question before the trial Court. Once again the trial Court by order dated 12-4-2002, held that the suit is maintainable and the Civil Court's jurisdiction is not ousted by Central Act 14/1981. Against the said order, the petitioner once again challenged the same in C.R.P.No.797/2002. In the light of the factual details,namely, the statutory provisions referred to above and the order of this Court in C.R.P.No. 572/2001 dated 20-7-2001, I am in agreement with the order of the trial Court dated 12-4-2002 holding that the suit as laid is maintainable.

9. Coming to I.A.No. 874/99 in O.S.No.516/99, which was filed for interim injunction, it is seen from the certified copy of the order, even on 25-8-99 the learned District Munsif after holding that prima facie case was made out and balance of convenience was in favour of the petitioner, granted ad-interim injunction till 8-9-99 and ordered notice to the respondent. It is further seen that on the next hearing date i.e., on 8-9-99, vakalath had been filed for the respondent. It is further seen that after several adjournments, the respondent filed counter on 20-1-2000 in the injunction application. Even after filing of counter by the sole respondent, the learned District Munsif, instead of disposing the said application, granted several adjournments by mentioning "enquiry?.Injunction order extended?..". Finally, this Court stayed the enquiry on 30-4-2002 in C.M.P.No. 63 58/2002 in C.R.P.No. 797/2002. It is not clear, particularly when the learned District Munsif having found that the suit is maintainable and after knowing that the respondent had filed counter affidavit in the injunction application, why the said application has been kept pending without passing orders one way or other. This Court has repeatedly held in all Interlocutory Applications that whenever the contesting party or parties filed counter affidavit/statement, it is incumbent on the part of the Court to dispose of the same one way or other. The said recourse has not been adopted by the learned District Munsif instead, he adjourned the said application on several occasions without any cause. 10. In the light of what is stated above, in view of the first order of the trial Court dated 3-1-2001 holding that the Civil Court has jurisdiction to try the issue in question, order of this Court in C.R.P.No. 572/2001 dated 20-7-2001 confirming the said order, in the light of the language used in Section 46 of the Act, and the plaintiff is not challenging any order or proceedings of the Pollution Control Board or Authority constituted under the Act, I hold that the suit instituted by the plaintiff is maintainable. It is made clear that if the matter in issue is to be considered by an Appellate Authority under section 31 of the Act, undoubtedly, the Civil Court is barred under Section 46 of the Act. In the light of the earlier conclusion that the learned District Munsif was not justified in keeping I.A.No.874/99, he is directed to dispose of the same on merits one way or other on or before 30-04-2003, after affording sufficient opportunity to both parties. After disposal of the said application, it is for him to dispose of the suit on merits expeditiously, uninfluenced by any of the observations made above. Both the Civil Revision Petitions are disposed of accordingly. Consequently, connected Civil Miscellaneous Petitions are closed. 21-03-2003

R.B.

To:-

The Additional District Munsif, Namakkal.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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