Karnataka High Court

Sri Shivananda Sharma vs Smt. Shantha Nagesha Rao on 28 July, 2023

Bench: H.P.Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                                        R
           DATED THIS THE 28TH DAY OF JULY, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                M.F.A. NO.2731/2023 (CPC)

BETWEEN:

1.     SRI SHIVANANDA SHARMA,
       MEMORIAL RASHTRIYA,
       VIDYALAYA DEGREE COLLEGE,
       NO.17, 26TH MAIN, 36TH CROSS,
       4TH BLOCK, JAYANAGAR,
       BENGALURU-560 041.
       REPRESENTED BY ITS SECRETARY

2.     RASHTRIYAN SHIKSHANA SAMITHI TRUST,
       R.V.ROAD,
       BENGALURU-560 004.
       REPRESENTED BY ITS SECRETARY
                                             ... APPELLANTS

          (BY SRI SHARATH GOWDA G.B., ADVOCATE)
AND:

SMT. SHANTHA NAGESHA RAO,
AGED ABOUT 85 YEARS,
W/O. LATE NAGESHA RAO,
NO.1007, 26TH MAIN,
4TH BLOCK, JAYANAGAR,
BENGALURU-560 041,
REPRESENTED BY HER GPA HOLDER,
SRI. KUMARASWAMY B.N.,
AGED ABOUT 67 YEARS,
S/O. LATE NAGESHA RAO
                                 2



SINCE DECEASED REPRESENTED BY HER LRS.

1.   SRI B.N.KUMARASWAMY
     AGED ABOUT 69 YEARS
     S/O. LATE B.NAGESH RAO

2.   SRI B.N.LOKESH
     AGED ABOUT 66 YEARS
     S/O. LATE B. NAGESH RAO

3.   SMT. B.N.VEENA
     AGED ABOUT 58 YEARS
     W/O. SRI M.R.RANGARAJU
     R/AT NO.119, 5TH MODEL HOUSE
     STREET, BASAVANAGUDI
     BENGALURU-560 004.

     BOTH R1 AND R2 ARE
     RESIDING AT NO.1007
     26TH MAIN, 4TH 'T' BLOCK
     JAYANAGAR
     BENGALURU-560 041.

4.   BRUHAT BENGALURU
     MAHANAGARA PALIKE,
     N.R. SQUARE
     BENGALURU-560 002.
     REPRESENTED BY ITS
     COMMISSIONER.
                                         ... RESPONDENTS

        (BY SRI ABHINAV R., ADVOCATE C/R1 TO R3)

      THIS M.F.A. IS FILED U/O.43 RULE 1(r) R/W. SECTION
151 OF CPC, AGAINST THE ORDER DT.01.03.2023 PASSED ON
I.A.NO.1 IN O.S.NO.3213/2019 ON THE FILE OF THE III
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY, (CCH NO.25), ALLOWING IA NO.1 FILED U/O.39 RULE 1
AND 2 R/W. SECTION 151 OF CPC.
                                      3



    THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    18.07.2023 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:

                            JUDGMENT

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. This water can be

safely used for flushing, irrigation, floor washing and ground

water recharge and it does not give any odour or foul smell while

it ensures continuous operation. The suit has been filed with a

sole intention of causing hurdles in the smooth administration of

the defendant Nos.1 and 2. Hence, prayed the Court to dismiss

the application.

6. The Trial Court, having considered the pleadings and

also the contents of the written statement, formulated the points

for consideration whether the plaintiffs have made out a prima

facie case for grant of order of an ad-interim injunction on

I.A.No.1, whether there is any balance of convenience and the

same lies in favour of the plaintiffs and whether the plaintiffs will

be put to irreparable loss and hardship, if ad-interim injunction

order is not granted.

7. The Trial Court, having considered the grounds urged

in the suit, written statement, the application and also the

affidavit and the contentions of the respective parties,

considering the guidelines in respect of Sewerage Treatment

Plant issued by KSPCB dated 01.03.2021, comes to the

conclusion that the plaintiffs have made out a prima facie case

and balance of convenience lies in favour of the plaintiffs and if

the injunction order is not granted, it will cause nuisance to the

plaintiffs and the very contention that the appellants-defendants

are not having any other space, except the space where they

have installed the Sewerage Treatment Plant cannot be accepted

and installation of Sewerage Treatment Plant is against the said

injunction. Hence, allowed the application restraining the

defendant Nos.1 and 2 in any manner operating the Sewerage

Treatment Plant. Hence, the present appeal is filed before this

Court.

8. The main contention urged by the appellants-

defendants in this appeal is that the Trial Court failed to

appreciate that there is no prima facie case in favour of the

plaintiffs and also failed to take note of balance of convenience

and in fact, these aspects have not been discussed by the Trial

Court while rendering the impugned order. The counsel also in

his argument would contend that the Trial Judge failed to

appreciate that there are more than 2,500 students studying in

the first appellant's college and suit schedule 'A' property has

been completely developed by the second appellant by putting

up a building for the purpose of educational institution and also

residential quarters for the staff of the first appellant. Therefore,

the appellants had to install Sewerage Treatment Plant at the

present location after obtaining the requisite permission from

BWSSB and the second respondent and without appreciating the

same, the learned Judge has committed an error in passing such

an order. It is also contended that the Trial Judge failed to

appreciate the fact that these appellants have established

Sewerage Treatment Plant in terms of the gazette notification

and circulars and have used latest technology available while

establishing Sewerage Treatment Plant i.e., Membrane Bio

Reactor Technology.

9. It is specifically contended that the water coming out

of Membrane Bio Reactor Technology will be filtered up to 0.12

to 0.4 microns and will be free from e-coil, colour and odour.

This water can be safely used for flushing, irrigation, floor

washing and ground water recharge. The advantages of using

Membrane Bio Reactor Technology is that it is not only

absolutely safe, but also, it does not give out any odour or foul

smell while it ensures continuous operation. It is contended that

the Government of Karnataka vide gazette notification bearing

No.FEE316 EPC 2015 dated 19.01.2016 noted that, upon

inspection and monitoring by the KSPCB, revealed that there

was deterioration of water quality in the lakes of Bangalore on

account of discharging of untreated waste water to the

rajakaluves, tanks and lakes in the urban area and discharge oils

and grease from industrial activity, sewage and garbage have

accumulated in sewer lines and some parts of lakes. For this

reason, it was recommended that Sewerage Treatment Plant

shall be installed in group housing projects, commercial

establishments and such other institutions to prevent pollution of

water body. The counsel also would vehemently contend that in

view of the circular dated 04.06.2019 and also notification dated

02.02.2018 issued under Regulation 4A of Bangalore Sewage

Regulations, it is made mandatory that all buildings of

educational institutions measuring 5,000 square meters and

above shall establish Sewerage Treatment Plant in unsewered

areas, if the water is supplied by the BWSSB and in view of the

same, Sewerage Treatment Plant is installed.

10. It is also contended that entire suit schedule 'A'

property has been developed by the second defendant by putting

up buildings for educational institutions and for residential

quarters for staff and there was no vacant space available for

establishing Sewerage Treatment Plant, except on the eastern

side of the suit schedule 'A' property. Hence, the same is

established in terms of the circular. The counsel also would

vehemently contend that the very suit itself is not maintainable

and documents of Annexures-B, C and D clearly disclose the fact

that the direction in the circulars has been complied with and

inspite of several citations being produced before the Trial Court,

the same has not been discussed by the Trial Court. The counsel

also would vehemently contend that, when the suit was set down

for cross-examination of P.W.1, instead of cross-examining the

P.W.1, an application is filed and impugned order has been

passed. The counsel also would vehemently contend that the

Civil Court has no jurisdiction to pass such an order.

11. The counsel also would vehemently contend that,

there is a bar under Section 58 of the Water (Prevention and

Control of Pollution) Act, 1974, which reads as hereunder:

"58. 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".

12. The counsel also would vehemently contend that the

Court can take cognizance of the offence under Section 49 of the

Water (Prevention and Control of Pollution) Act, 1974, which

reads as hereunder:

"49. Cognizance of offences.- [(1) No Court shall take cognizance of any offence under this Act except on a complaint made by -

(a) a Board or any officer authorised in this behalf by it; or

(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Board of officer authorized as aforesaid, and no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act].

13. The counsel also brought to notice of this Court

Section 25 of the Water (Prevention and Control of Pollution)

Act, 1974 i.e., Restrictions on new outlets and new

discharges and brought to notice of this Court sub-section (3)

that the State Board may make such inquiry as it may deem fit

in respect of the application for consent referred to in sub-

section (1) and in making any such inquiry shall follow such

procedure as may be prescribed.

14. The counsel also brought to notice of this Court

Section 26 of the Water (Prevention and Control of Pollution)

Act, 1974 i.e., provision regarding existing discharge of

sewage or trade effluent and also Section 28 of the Water

(Prevention and Control of Pollution) Act, 1974 i.e., appeals,

wherein an appeal provision is made making it clear that any

person aggrieved by an order made by the State Board under

Section 25, Section 26 or Section 27 may, within thirty days

from the date on which the order is communicated to him, prefer

an appeal to such authority. Hence, the counsel would

vehemently contend that the Civil Court ought not to have

granted the relief of injunction by entertaining the suit.

15. The counsel, in support of his argument, he relied

upon the National Green Tribunal Act, 2010 and brought to

notice of this Court Section 15 of the Act, i.e., with regard to

relief, compensation and restitution in respect of restitution

of the environment for such area or areas, as the Tribunal may

think fit. Hence, it is contended that the Trial Court, inspite of

bar under the Water (Prevention and Control of Pollution) Act,

1974 as well as with regard to the jurisdiction as provided in the

National Green Tribunal Act, 2010 in respect of where substantial

question relating to environment (including enforcement of any

legal right relating to environment) is involved and such question

arises out of the implementation of the enactment specified in

the Schedule 1, the Trial Court ought not to have granted the

relief.

16. The learned counsel for the appellants-defendants, in

support of his argument, relied upon the judgment of the

Gujarat High Court in LIYAKAT MAHMAD CIRCLE VS.

STERLING SEZ AND INFRASTRUCTURE LIMITED reported in

2013 SCC ONLINE GUJ 5189, wherein a question was involved

whether suit of the appellants is barred by National Green

Tribunal (NGT) Act, 2010 which is discussed in Para No.2 and so

also discussed with regard to the bar of jurisdiction under

Section 29 of the National Green Tribunal (NGT) Act, 2010 and

brought to notice of this Court Para No.6.1 of the judgment, with

regard to the issue involved i.e., a substantial question relating

to environment, wherein it is held that, in civil case which relate

to enforcement of any legal right would become a dispute under

Section 14 and which shall have to be dealt with and decided by

the Tribunal alone.

17. The counsel also relied upon the judgment of the

Madras High Court in M/S. AMMAN OIL MILL AND

REFINERIES AND ANOTHER VS. M. SARADHAMBAL AND

OTHERS in C.R.P. (PD). NO.2706 OF 2014 and M.P.NO.1 OF

2014 pronounced on 12.06.2019 and brought to notice of this

Court Para No.5, wherein it is discussed with regard to the suit

having been filed for the reliefs mentioned therein and also

discussed with regard to Section 58 of the Water (Prevention and

Control of Pollution) Act, 1974 i.e., the bar of jurisdiction and

also with regard to bar of jurisdiction Section 46 of the Air

(Prevention and Control of Pollution) Act, 1981. The counsel

also brought to notice of this Court Para No.22 of the judgment,

wherein it is discussed with regard to the disputes which the

Tribunal can settle and also with regard to the jurisdiction of the

Tribunal and Section 15 of the National Green Tribunal Act, 2010

i.e., relief, compensation and restitution. In Para No.22 of

the judgment, the Court having considered the provisions of the

National Green Tribunal Act, 2010, held that it is evident that the

jurisdiction of the Civil Court is barred. The counsel referring

these judgments would vehemently contend that when there is a

clear bar, the Trial Court ought not to have granted the relief as

sought in I.A.No.1. Hence, prayed the Court to set aside the

order.

18. Per contra, learned counsel for the respondents-

plaintiffs in his argument would vehemently contend that the

Trial Court discussed in detail, particularly with regard to

condition No.4 at Para No.10 of the judgment. The counsel also

would contend that, while installing Sewerage Treatment Plant,

there should be a plan and the installation of Sewerage

Treatment Plant by the defendants is not as per the norms of

KSPCB. The counsel would further contend that, in the written

statement they appellants-defendants have not taken any

defence that the Court has no jurisdiction and nothing is averred

in the written statement as regards the bar is concerned and

they have not filed any objections to I.A.No.1 and only filed

memo adopting the written statement as objections to I.A.No.1.

The counsel would vehemently contend that if any order is

passed under Sections 25, 26 and 27 of the Water (Prevention

and Control of Pollution) Act, 1974, there is an appeal provision

under Section 28 of the Water (Prevention and Control of

Pollution) Act, 1974. The suit is filed by a private party when

the civil right was violated by installing Sewerage Treatment

Plant which amounts to violation of civil right of a party. Hence,

the very contention that the suit itself is not maintainable cannot

be accepted.

19. The counsel also would vehemently contend that the

very National Green Tribunal Act, 2010 is not applicable and the

same is with regard to environment. The counsel would

vehemently contend that the guidelines issued by the BWSSB

has not been followed and no certificate is produced for having

complied with the guidelines issued for establishment of

Sewerage Treatment Plant Guidelines and hence, the appellants-

defendants cannot set up a Sewerage Treatment Plant in a

setback area. The counsel also brought to notice of this Court

Section 269 of the BBMP Act and also Building Bye-laws of 2008.

The counsel also would contend that though the suit was filed in

2019, due to Covid-19, application was not pressed but, before

filing the suit, legal notice was issued and the same is also

stated in Para No.7 of the plaint and there was no sanction by

the concerned authority to install Sewerage Treatment Plant and

in order to dispose of the canteen waste, the Sewerage

Treatment Plant is set up. Hence, the appellants-defendants

cannot contend that Sewerage Treatment Plant is installed as

per the guidelines.

20. The learned counsel for the respondents, in support

of his argument also filed written submissions contending that

jurisdiction of the Civil Court is barred in respect of any matter

which an Appellate Authority constituted under this Act is

empowered by or under this Act to determine and consequently,

no injunction can 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 the Act. The Appellate Authority

under the Water (Prevention and Control of Pollution) Act, 1974

and to which an appeal lies is provided under Section 28 of the

said Act. The appeals are provided against any order made by

the State Board under Section 25, 26 or 27 of the Act. In the

present case, no order is made either under Section 25, 26 or 27

of the Act. In other words, no action that is taken under the

aforesaid provisions is the subject matter before the Civil Court

or is challenged before the Civil Court. Consequently, Section 58

which bars the jurisdiction of the Civil Court is not applicable to

the case on hand.

21. The counsel also in his written submission contended

that, in so far as the NGT Act is concerned, again, there is no bar

under Section 29 of the said Act. The jurisdiction of the Civil

Court under the NGT Act is barred in the matters which the

Tribunal is empowered to determine in its Appellate jurisdiction;

any dispute or any question relating to any claim in relation to

compensation or restitution of property damaged or environment

damage; no injunction can be granted in respect of any action

taken or to be taken in respect of any settlement of dispute or

claim for granting any relief or compensation. Section 14 of the

NGT Act lays down the jurisdiction of the Tribunal. If any

substantial question relating to environment is involved and

arises out of the implementation of the seven statutory

enactments specified in Schedule-I, such civil cases will be heard

and decided by the Tribunal. Section 15 of the NGT Act provides

for relief, compensation and restitution in relation to victims of

pollution and in case their property is damaged. Such is not the

case in the present context. The suit that is filed before the Civil

Court is to decide the personal rights of an individual in relation

to the nuisance caused by the defendants/appellants. Section

16 of the NGT Act prescribes the Appellate jurisdiction of the

Tribunal. The suit is not instituted in relation to any order which

the Tribunal has to decide under the Appellate jurisdiction. The

counsel would vehemently contend that Civil Court has got the

jurisdiction to try the suits of all civil nature under Section 9 of

C.P.C. and there is a presumption that Civil Court has

jurisdiction. Ouster of jurisdiction is not to be readily inferred.

In case the personal rights of a person are affected or an

injunction is sought in relation to any nuisance caused by the

defendant and such a suit is filed, the suit would be perfectly

maintainable before the Trial Court.

22. The counsel also would vehemently contend that the

defendants before the Trial Court have not taken any such

contention in the written statement and now, they cannot

contend that suit is barred by law and for the first time, the said

contention is raised before this Court and now, cannot find fault

with the order of Civil Court granting an order of temporary

injunction. The appellants have not made out any exceptional

case before the Appellate Court to interfere with the order of

temporary injunction and nuisance being a continuous cause of

action, an order of temporary injunction must be granted and

continued. Hence, this Court cannot interfere with the order of

the Trial Court.

23. The counsel, in support of his argument, relied upon

the judgment of the Apex Court in THRESSIAMMA, ALIAS

VALSAMMA VS. SEBASTIAN MATHEW, ALIAS SUNNY

reported in AIR 2002 KER 1 and brought to notice of this Court

Para Nos.2, 3 and 4 and also Para Nos.8 and 9, wherein the

Apex Court has discussed with regard to the maintainability of

the suit and in Para No.9, it is observed that, if law permits, it is

open to the appellant to challenge the same before the

concerned authority. Regarding nuisance, as pointed out above,

the version of the appellant would be that on account of the

construction of the factory and running the same for

manufacturing the cement cavity box, the air will be polluted, it

will cause so many diseases to the members of her family and

the neighbours, it will affect the education of the children

studying in the educational institutions near the locality, the

sound caused by the running of the factory will impair the

hearing of the appellant and other neighbours, etc. Even if these

facts are accepted for the sake of arguments, they do not satisfy

the requirements for instituting a suit at this stage as held by

the Supreme Court in the above said decision. Therefore, when

an actionable nuisance arises, that is to say, a cause of action

erupts on account of the manufacturing of the cement cavity box

or construction of the factory, as per the law laid down in

KULDIP SINGH's case (AIR 2000 SC 1410), a suit will lie.

24. The counsel also relied upon the judgment in

MATHEW LUKOSE & OTHERS VS. KERALA STATE

POLLUTION CONTROL BOARD & OTHERS reported in (1990)

2 KLJ 717 and brought to notice of this Court Para Nos.8, 9, 11,

14 and 22 and in Para No.22 of the judgment, the Court comes

to the conclusion that Article 21 comprehends the right to

healthy environment, and the duty in the State to protect these

rights. The magnitude of the problems caused by pollution also

have been noticed. To eliminate pollution, industries cannot be

eliminated. The competing claims, must balance at the point,

where the outer limit of pollution touches the tolerance levels or

safety limits. If it crosses that point, it cross the rubicon and the

activity generating pollution is liable to be interdicted. When the

degree of pollution crosses the tolerance limits, it invades the

rights under Article 21 and it cannot pass the mustering might of

the Constitution. Tolerance limits have not been fixed statutorily

in many instances. Hence, reasonable standards, accepted by

informed agencies and authorities must serve as the yardstick.

The limits indicated by the Pollution Control Board, should serve

as the standard in this case.

25. The counsel also relied upon the judgment in

RADHEY SHIAM VS. GUR PRASAD SERMA AND ANOTHER

reported in AIR 1978 ALL 86 and brought to notice of this

Court Para No.6, wherein the Allahabad High Court observed

that constant noise, if abnormal or unusual, can be an actionable

nuisance if it interferes with one's physical comforts. Even in a

noisy locality, if there is substantial addition to the noise by

introduction of some machine, instrument or performance at

defendant's premises which materially affects the physical

comforts of the occupants of the plaintiff's house, then also the

noise will amount to actionable nuisance. The right to commit a

private nuisance can in certain circumstances, be acquired either

prescription or by the authority of a statute. The counsel

referring this judgment would contend that establishment of STP

by the side of the site of the plaintiffs causes nuisance and the

same is invading the right of the plaintiffs under Article 21.

26. The counsel also relied upon the judgment in

RAMESH GOBINDRAM (DEAD) THROUGH LRS. VS. SUGRA

HUMAYUN MIRZA WAKF reported in (2010) 8 SCC 726 and

brought to notice of this Court Para Nos.32 to 36, wherein it is

discussed that the Act does not provide for any proceedings

before the Tribunal for determination of a dispute concerning the

eviction of a tenant in occupation of a wakf property or the rights

and obligations of the lessor and the lessees of such property.

27. The counsel also relied upon the judgment in

RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND

ANOTHER VS. BAL MUKUND BAIRWA reported in (2009) 4

SCC 299 and brought to notice of this Court Para Nos.12 to 15,

wherein the Apex Court has discussed with regard to Section 9

of the Code is in enforcement of the fundamental principles of

law laid down in the maxim ubi jus ibi remedium. A litigant,

thus having a grievance of a civil nature has a right to institute a

civil suit in a competent Civil Court unless its cognizance is either

expressly or impliedly barred by any statute. Ex facie, in terms

of Section 9 of the Code, Civil Courts can try all suits, unless

barred by the statute, either expressly or by necessary

implication.

28. The counsel also relied upon the judgment in

MANOHAR LAL (DEAD) BY LRS. VS. UGRASEN (DEAD) BY

LRS. AND OTHERS reported in (2010) 11 SCC 557 and

brought to notice of this Court Para Nos.30 to 34, wherein the

Apex Court has observed that, it is well settled that the decision

of a case cannot be based on grounds outside the pleadings of

the parties and it is the case pleaded that has to be found.

Without an amendment of the plaint, the Court was not entitled

to grant the relief not asked for and no prayer was ever made to

amend the plaint so as to incorporate in it an alternative case.

The counsel referring this judgment would contend that for the

first time, the ground of no jurisdiction and the suit is barred by

limitation under the special enactment is raised.

29. The counsel also relied upon the judgment of the

Apex Court in BACHHAJ NAHAR VS. NILIMA MANDAL AND

ANOTHER reported in (2008) 17 SCC 491 and brought to

notice of this Court Para Nos.10 and 17, wherein the Court has

discussed with regard to violation of several fundamental rules of

Civil Procedure and that the Court should confine its decision to

the question raised in pleadings. The counsel referring this

judgment would contend that the issue of bar of jurisdiction has

not been raised in the appeal and unless the same is raised

before the Trial Court, the relief cannot be granted.

30. The counsel also relied upon the judgment in SMT.

LALITHAKSHI ANNADANAGOUDA VS. SADASHIVAPPA

BASAPPA PATIL AND ANOTHER reported in AIR 1984 KAR

74, wherein this Court discussed the several judgments of

different Courts and held that principles laid down therein is

undisputable and that only shows that appeal against

discretionary order passed by the Trial Court is more in the

nature of a revision and the Appellate Court should not likely to

interfere with an order passed by the Trial Court in its judicial

discretion.

31. The counsel also relied upon the judgment in THE

MUNICIPAL CORPORATION OF DELHI VS. SHRI SURESH

CHANDRA JAIPURIA AND ANOTHER reported in (1976) 4

SCC 719 and brought to notice of this Court Para Nos.8, 9, 10

and 11, wherein the Apex Court has observed that the Court has

to look into the averments made in the plaint and also Section

41(h) of the Specific Relief Act, 1963 which lays down that an

injunction, which is a discretionary equitable relief, cannot be

granted which an equally efficacious relief is obtainable in any

other usual mode of proceeding except in cases of breach of

trust and the Court has to look into the principles governing the

interference and the Trial Court has considered the material on

record and passed an order and there is no need to interfere

with the findings of the Trial Court.

32. In reply to the arguments of the learned counsel for

the respondents-plaintiffs, learned counsel for the appellants,

apart from relying upon the judgments of the Madras High Court

and Gujarat High Court, also relied upon the judgment of the

Apex Court with regard to the jurisdiction in JAGMITTAR SAIN

BHAGAT AND OTHERS VS. DIRECTOR, HEALTH SERVICES,

HARYANA AND OTHERS reported in (2013) 10 SCC 136,

wherein it is held that if a Court having no jurisdiction over a

matter passes a decree, it would amount to nullity and

jurisdiction cannot be conferred upon a Court/Tribunal by

acquiescence or waiver, if it otherwise does not have jurisdiction.

The counsel referring this judgment would vehemently contend

that the Trial Court has no jurisdiction to entertain the suit.

33. The counsel also relied upon the judgment of the

Division Bench of this Court in UNION OF INDIA AND OTHERS

VS. ALISAB reported in 2000 SCC ONLINE KAR 400, wherein,

it is held that no relief as claimed could have been granted by

the learned Single Judge, since the question of jurisdiction was

not raised either in the pleadings or during the course of the

arguments, therefore, it is not competent for us to enter into

that question and held that we do not agree with the said

contention, inasmuch as it is well settled that the question of

jurisdiction can be raised at any stage of the proceedings and

can be gone into even suo motu by the Court even if it is not

raised by either of the parties. It is a trite law that if the Court

has no jurisdiction to decide a cause then no party can confer

the same if it is not objected to by the contesting party. The

counsel referring this judgment would vehemently contend that

even though the ground of jurisdiction is not raised before the

Trial Court, the same can be considered at the appeal stage also.

34. Having heard the learned counsel for the appellants

and the learned counsel for the respondents and also the

principles laid down in the judgments referred (supra), the

points that would arise for consideration of this Court are:

(1) Whether the Trial Court committed an error in allowing the application filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. granting an order of injunction against the defendants?

(2) Whether the Trial Court has committed an error in not considering the issue of jurisdiction in entertaining the suit and ought not to have granted the relief of injunction?

(3) What order?

Point Nos.(1) and (2):

35. Both the points are taken up together for

consideration, since the issue of jurisdiction as well as exercising

the discretion by the Trial Court is raised before the Court. In

order to consider the same, the Court has to look into the relief

sought in the plaint before the Trial Court. Having perused the

plaint which is produced as Annexure-D, the relief sought before

the Trial Court is for mandatory injunction directing the

defendants to remove the STP situated on the eastern side of

the schedule 'A' property all along the western compound wall of

the schedule property immediately and forthwith. In the event

of failure on the part of the defendants in removing the STP,

then to permit the plaintiffs to remove the same through a Court

Commissioner and to recover the expense thereof from the

defendant Nos.1 and 2 and grant a decree of permanent

injunction restraining the defendant Nos.1 and 2 from putting up

a permanent or temporary installation in the set back area on

the eastern side of the schedule 'A' property.

36. Having sought the relief of mandatory injunction, in

Para No.8 of the plaint, it is pleaded that defendant Nos.1 and 2

started carrying on some activity on the eastern side of the

schedule 'A' property and the plaintiffs were given to understand

that remedial action was being undertaken by the defendant

Nos.1 and 2. It is only when extreme foul and pungent smell

emanated from the schedule 'A' property and the plaintiff and

her family members made enquiries, they were shocked and

surprised to learn that a full-fledged STP has been set up. To

add insult to injury, the said STP was being used to treat

sewerage. Ever since the installation of the STP, extreme foul

smell (sewerage smell) started to emanate from the said

treatment plant.

37. Having perused these averments made in the plaint,

it is clear that already STP is installed and pungent smell was

emanating. It is the claim of the defendants that they are

running educational institution and more than 2500 students are

studying and they have established the STP in compliance with

the notification issued by the Forest, Ecology and Environment

Secretariat dated 19.01.2016. The counsel also would contend

that Bangalore Water Supply and Sewerage Board also issued

the circular on 04.06.2019, wherein also it is specifically

mentioned that, it is mandatory to establish STP to the buildings

of educational institutions measuring 5,000 square meters and

above. Hence, the defendants contend that they have installed

the STP in compliance of Annexures-B and C of the appeal and it

is also their specific case that educational institution is being run

from the last two decades.

38. The Trial Court also while discussing the same in

Para No.10, taken note of the fact that the pipes have been left

open on the ground level and STP is installed closer to the

plaintiffs' property without leaving proper space as required and

putting forth the contention that as per the notification and

circular of BWSSB and KSPCR, they have installed the STP in

their premises and there was no vacant space available for

establishing STP, except on the eastern side of suit schedule 'A'

property. It is also the specific case of the appellants that,

except the said space, no other space is available for installing

STP but, the Court while taking note of the fact with regard to

lack of jurisdiction as contended in the oral arguments, comes to

the conclusion that this Court lacks jurisdiction to try this suit,

holds no justification but, no reason has been assigned with

regard to jurisdiction is concerned, except making an

observation that this Court lacks jurisdiction to try this Court,

holds no justification and only in one sentence, made an

observation that holds no justification.

39. Learned counsel for the appellants-defendants have

also relied upon the judgments of the Madras and Kerala High

Court before the Trial Court, wherein it is discussed with regard

to the issue of jurisdiction i.e., Section 58 of the Water

(Prevention and Control of Pollution) Act, 1974 where there is a

bar of jurisdiction that 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 and nothing is discussed in the judgment of the

Trial Court, even though the judgments of the Madras and Kerala

High Court are relied upon by the appellants-defendants as to

the issue of jurisdiction is concerned.

40. Learned counsel for the appellants-defendants also

relied upon the judgment of the Gurajat High Court referred

(supra), wherein the Court has discussed with regard to bar of

jurisdiction under the National Green Tribunal (NGT) Act, 2010

and controversy raised between the parties is whether the suit is

maintainable or not. I have already pointed out that under the

Water (Prevention and Control of Pollution) Act, 1974, there is a

bar under Section 58 of the Act. But, the plaintiffs have not

approached the concerned authority for redressal of their

grievances and directly approached the Civil Court.

41. The other contention of the learned counsel for the

appellants-defendants is that under Section 14 of the National

Green Tribunal Act, 2010, the Tribunal shall have the jurisdiction

over all civil cases where a substantial question relating to

environment (including enforcement of any legal right relating to

environment), is involved and such question arises out of the

implementation of the enactments specified in Schedule I. This

Court would like rely upon the judgment of the National Green

Tribunal Principal Bench, New Delhi in KEHAR SINGH VS.

STATE OF HARYANA reported in 2013 SCC ONLINE NGT 52,

wherein in Para No.3 discussed with regard to the dispute of

installation of STP and in Para No.14 of the judgment, it is

observed that the applicant has invoked the jurisdiction of the

Tribunal under Section 14 of the NGT Act with regard to

establishment of STP on a location which, according to the

applicant, it bound to create environmental problems and would

adversely affect the public health and the same is entertained

and discussed by the National Green Tribunal, particularly in

Para No.47 of the judgment. Hence, it is clear that installation

of STP is also an environmental issue and the same is considered

by the National Green Tribunal.

42. Learned counsel appearing for the respondents-

plaintiffs in his written submissions as well as in his arguments

would vehemently contend that civil suit can be entertained by

the Trial Court when civil rights are violated and contend that

even though there is a bar under Section 24 of the National

Green Tribunal Act, 2010 and under Section 58 of the Water

(Prevention and Control of Pollution) Act, 1974. However, he

contend that no such order has been passed under Sections 25,

26 and 27 of the Act to take the matter before the Appellate

Court under Section 28 of the Act. Hence, jurisdiction of the

Civil Court is available to the plaintiffs for redressal of their

grievances. Admittedly, the plaintiffs in the written statement

have not raised the issue with regard to the jurisdiction, except

stating that suit is not maintainable. But, during the course of

the argument, the learned counsel for the respondents-plaintiffs

has raised the issue of jurisdiction and relied upon the judgment

of the Madras High Court, wherein the Court has discussed with

regard to the bar under Section 58 of the Water (Prevention and

Control of Pollution) Act, 1974 and the Trial Court has not

discussed the same, except referring the same.

43. No doubt, both the counsels relied upon several

judgments regarding jurisdiction, the Division Bench of this

Court in the judgment in UNION OF INDIA AND OTHERS VS.

ALISAB reported in 2000 SCC ONLINE KAR 400, held that

issue of jurisdiction can be raised at any point of time and need

not necessarily raise the same in the pleading and the same can

be raised in the appeal also. Further, even at the time of

canvassing the argument also, the same can be raised and

admittedly, the judgment of the Madras High Court is also relied

upon before the Trial Court and the Trial Court, except stating

that this Court lacks jurisdiction holds no justification and

nothing is discussed regarding the jurisdiction.

44. It has to be noted that the point of jurisdiction goes

to the very root of the case and if the Court is not having

jurisdiction to entertain the suit, the question of granting any

discretionary relief of mandatory injunction does not arise.

When there is a bar under Section 58 of the Water (Prevention

and Control of Pollution) Act, 1974 and under Sections 14 and 29

of the National Green Tribunal Act, 2010, wherein it is

specifically held that no civil Court have jurisdiction to entertain

the appeal in respect of any matter in its appellate jurisdiction

and having read the said proviso, the Trial Court ought to have

given finding with regard to the jurisdiction whether suit is

maintainable or not and the same is not touched upon by the

Trial Court.

45. Having read the principles laid down in the

judgments referred (supra), it is very clear that, at the first

instance, the Court has to decide the issue of jurisdiction and

then has to consider the application filed under Order 39, Rule 1

and 2 read with Section 151 of C.P.C. In the case on hand,

there is no finding with regard to the jurisdiction is concerned,

when the issue was raised with regard to the bar for filing a suit.

I have already pointed out that, in Para No.10 of the impugned

order, the Trial Court, except stating that this Court holds no

justification, no reason has been assigned regarding jurisdiction.

Hence, the Trial Court has to consider the issue with regard to

jurisdiction and bar in exercising the jurisdiction and then,

entertain an application filed under Order 39, Rule 1 and 2 read

with Section 151 of C.P.C. and without considering the issue of

jurisdiction, the relief cannot be granted.

46. It is also not in dispute that suit is filed for the relief

of mandatory injunction to remove the STP and in Para No.8 of

the plaint, it is pleaded that STP is installed and the same has

started its commissioning and foul smell is emanating. When

such pleading is made and relief is sought for mandatory

injunction and the very prayer in the suit itself is for removal of

STP and if defendants fail to remove the same at the cost of the

plaintiffs, the Trial Court ought to have taken note of the said

fact while passing an order and when an order of mandatory

injunction is prayed in the suit, the Trial Court ought to have

considered the very interim prayer and failed to take note of the

said fact into consideration.

47. Apart from that, the Trial Court, while considering

point Nos.1 to 3, mainly relied upon the memorandum of STP

dated 01.03.2021 as to the guidelines and location of STP by

KSPCB and this guidelines are issued subsequent to the filing of

the suit and notification is issued on 01.03.2021. Admittedly,

the suit was filed in the year 2019 itself and defendants claim

that in compliance of Annexures-B and C, they have installed

STP and the Trial Court failed to take note of the said fact into

consideration and this guidelines is prospective and not

retrospective, since the same was issued on 01.03.2021 and by

that time, the suit was pending before the Court and by referring

the notification dated 01.03.2021, the Trial Court comes to the

conclusion that the appellants have not complied with the

guidelines and the very observation made by the Trial Court is

erroneous since the suit was already filed in the year 2019 and

giving effect to the circular and guidelines of 2021 does not arise

and the said finding is erroneous and the Trial Court has not

discussed anything about the contention of the respective

parties. But, mainly relied upon the subsequent guidelines and

notification dated 01.03.2021 and passed the order and not

considered the merits of the contentions raised by the plaintiffs

and the defendants. 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.

48. It is the case of the defendants that already STP is

commissioned and the same is installed in terms of the

notification and memorandum of STP guidelines marked as

Annexures-B and C and the same is not discussed by the Trial

Court. It is the specific contention that, already STP is installed

and no other space is available, except the eastern side of the

suit schedule 'A' property though they were having space for

installation of STP and the same is also not discussed by the

Trial Court while passing an order. When such being the case

and the issue involved between the parties is with regard to the

jurisdiction as well as the merits of the application and relief

sought is also for mandatory injunction to remove the STP, the

same requires to be considered by the Trial Court and the Trial

Court failed to take note of the relief sought in the I.A. and also

the pleadings and main relief sought in the plaint and consider

the bar under Section 58 of the Water (Prevention and Control of

Pollution) Act, 1974 and also bar under Section 29 of the

National Green Tribunal Act, 2010. Hence, it requires

interference of this Court. Accordingly, answered point Nos.(1)

and (2) as 'affirmative'.

Point No.(3)

49. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed.

(ii) The impugned 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, is hereby set aside and matter is remitted back to the Trial Court to consider the same afresh keeping in mind the observations made hereinabove with regard to the jurisdiction as well as the merits of the application filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C.