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1987 Supreme(AP) 539
Andhra Pradesh High Court
Judges : M.JAGANADHA RAO
ALAPATI VENKATA RAO - Appellant
Versus
NIZAM PATNAM SATVANARAYANA - Respondent
S.A. No.231/82
Decided On : 09-21-87
Advocates Appeared :
Mr. S. Venkata Reddy,Mr. M. Venkatarayudu
Headnote:CIVIL PROCEDURE CODE, Or. 39, and A.P. Gram Panchayats Act, Sec.125 - Suit by Plaintiffs for permanent injunction against defendant from setting up a rice mill on ground of nuisance by way of Pollution and noise- Duty of Court while granting injunction - Principles - Stated.
Held : In view of the great advances in modern technology and engineering and the methods evolved for preventing different types of pollution, the Court must consider before granting a permanent injunction, whether the noise, smoke or dust can be adequately prevented by the defendant complying with the conditions imposed by the relevant statutory authorities or whether any further conditions are to be imposed. The Court also has to see the nature of the locality, the pre-existing conditions and whether the defendant s unit will or will not substantially add to the existing inconvenience. Th8 Court has also to see the bonafides of the plaintiffs and whether they have been set up by rival businessman.
In this case a reading of the permission granted by the Commissioner of Civil Supplies or the Chief Inspector of Factories and Boilers and the District Medical Officer reveal that they have insisted that the defendant should use an electric motor, a silencer and separate chamber to store the husk so that the husk may not be blown by the air into the premises of the neighbours. Various other conditions have been imposed.
Under Sec. 125 of Gram Panchayats Act, it is not open to the person who proposes to construct the factory or workshop to directly apply to the Governmental Authorities. The application has to be only through the agency of the Gram Panchayat. Inasmuch as such a procedure has not been followed in the present case, the permissions and licenses obtained by the appellants defendant by directly approaching the said authorities are also of no avail. Therefore, the plaintiffs are entitled to a declaration that the defendants-appellants have no right, for the present to construct the Rice Mill or instal the machinery and for a permanent injunction, for the present but such a declaration and injunction cannot be granted for all time to come.
S.A. Disposed of
( 1 ) THIS is an appeal preferred by the defendants 1 and 2 against the judgment of the learned Subordinate Judge, Tenali in AS No. 37 of 1980 by which he set aside the judgment passed by the learned District Munsif, repalle in OS No. 559 of 1977 and then decreed the suit.
( 2 ) THE respondents filed the suit for a declaration that the defendants 1 and 2 having no legal right to construct the rice mill or instal machinery in the plaint schedule site and for permanent injunction and for costs. They contended that they are residents of Nizampalli Village, that the house of the plaintiffs is on the Southern side of the suit property, that it is a residential locality, and that the defendants-appellants are proposing to construct a rice mill of 25 H. P. in the suit site. They contended that the appellants did not obtain the necessary permissions under the Public Health Act nor the consent of the other neighbours. The vibrations of the nuisance that may emanate from the mill will disturb the mental peace of the inhabitants, and will also disturb the sleep of the neighbours during the night. They also alleged that the smoke emanating from the rice mill and the other products and dust resulting therefrom, will cause injury to the health of the inmates. The 1st defendant sent objection petitions to the District Health Officer, district Collector and the Regional Director of Factories, Guntur, objecting to the construction. Hence the suit.
( 3 ) THE defendants 1 and 2 contended that they applied to the panchayat in 1977 for permission to construct a rice mill that the Panehayat passed resolution on 28-5-1977 permitting them to construct a rice mill, that the Commissioner of Civil Supplies granted permission on 10-8-1977 for construction of the rice mill, likewise the Chief Inspector of Factories and boilers, Hyderabad as also the District Medical and Health Officer, Guntur, accorded necessary permissions on 20-9-1977 and 11-10-1977, respectively ; the 1st plaintiff gave his consent for the construction of the rice mill. The health authorities took the consent of the persons residing within 250 feet of the proposed rice mill and tnen granted permissions. The defendants have also spent Rs. 30,000/ -. The suit is set up by some other rice millers who are jealous of the appellants and has to be dismissed.
( 4 ) ON the basis of the above pleadings, the learned District Munsif, framed various issues and examined PWs. 1 to 6 for the plaintiffs-respondents and marked Ex. A-1 to A-12. He also examined DWs. 1 to 4 for the defendants and marked Exs. B-1 to B-13. On a consideration of the above evidence, he came to the conclusion that the defendants have absolute right and title to the suit site and are entitled to construct the rice mill subject to obtaining valid permissions and licence from the concerned authorities under section 125 of the Andhra Pradesh Gram Panchayat Act, 1964. He however held that the plaintiff is not entitled to the declaration and permanent injunction sought for as against the defendants inasmuch as the defendants had already obtained the necessary permissions from the concerned authorities for the construction of the rice mill. While agreeing that the resolution of the Gram Panchayat should have been passed after these permissions were granted by the concerned authorities, the learned District Munsif observed that it was now open to the Gram Panchayat to consider afresh these approvals contained in Exs. B-6 to B-8 and grant fresh permission to the defendants to run the rice mill, if the Panchayat was satisfied that the mill was being constructed and the machinery installed in accordance with the conditions laid down in Exs. B-6 to B-8. Subject to the above, the learned district Munsif dismissed the suit by his judgment, dated 30th April, 1980.
( 5 ) ON appeal, the learned Subordinate Judge set aside the above judgment and decreed the suit holding that there is a reasonable apprehension in the minds o
