Point of law: When the guidelines is prospective, the same ought to have been considered by the Trial Court, since the suit was filed in 2019 and committed an error in passing such an order.

JUDGMENT :

1. Heard the learned counsel for the appellants and learned counsel for the respondents.

2. This appeal is filed under Order 43, Rule 1(r) read with Section 151 of C.P.C. challenging the order dated 01.03.2023 passed in O.S.No.3213/2019 on the file of the III Additional City Civil and Sessions Judge, Bengaluru City (CCH No.25), allowing I.A. No.1 filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. granting an order of injunction against the defendants.

3. The factual matrix of the case of the plaintiffs before the Trial Court is that the plaintiffs had filed the suit against the defendants for permanent injunction in which I.A.No.1 is filed for restraining the defendant Nos.1 and 2, men agents and such other persons or claiming through them in any manner operating the Sewerage Treatment Plant installed by the defendants in schedule ‘A’ property.

4. In support of the application, an affidavit is sworn to by the power of attorney holder that the plaintiffs are the absolute owners in possession and enjoyment of the suit schedule property. The property belonging in which the defendants are in occupation lies towards western side of his property who are running some educational institutions in schedule ‘A’ property, in which the campus comprises of 5 floors. In the setback area on the eastern side of the schedule ‘A’ property, the defendants have illegally set up a Sewerage Treatment Plant by violating the rules and regulations pertaining to the installation, commissioning and running of Sewerage Treatment Plant. Having installed and running Sewerage Treatment Plant, plaintiffs have been put to immense hardship, injury, loss and constant foul smell emanating from it and huge pipes are installed to run the plant. On one occasion on account of the pipe having burst, faucal matter was thrown and spread across the property. Hence, the plaintiffs will be put to hardship and inconvenience and it is prevented from enjoying the schedule property. After several requests, defendants are least bothered of infringement of their rights. The balance of convenience lies in their favour and in granting an interim order. If the application is not allowed, the plaintiffs will be put to great hardship and loss which cannot be compensated in any means.

5. This application was resisted by the defendants by filing written statement along with a memo to consider the written statement as objections to I.A.No.1. In the written statement, it is contended that the averments made in the plaint are false and the very suit itself is not maintainable and the same is liable to be dismissed. It is contended that BWSSB and KSPCB have passed notification and circular stating that all educational institutions measuring more than 5,000 square meters shall establish Sewerage Treatment Plant in their premises. Therefore, BWSSB and KSPCB are just and necessary parties to the suit. It is contended that the second defendant is a registered Trust established in the year 1940 by late Shivananda Sarma and it is the fastest growing institution in the State, where 16,000 students are studying and the first defendant is one such institution established by the second defendant in the year 1982. Further, BDA authority leased the suit schedule ‘A’ property to the second defendant for a period of 30 years vide registered lease deed dated 03.01.2009 and in first defendant’s college, more than 2,500 students are studying. The entire suit schedule ‘A’ property has been developed by the second defendant by putting up buildings for educational institutions and there was no vacant space available for establishing Sewerage Treatment Plant, except on the eastern side of suit schedule ‘A’ property and have established Sewerage Treatment Plant in terms of the gazette notification and circular. It is also contended that the water coming out of the Membrane Bio Reactor Technology will be filtered up to 0.12 to 0.4 microns and will be free from e-coli, colour and odour.