KULDIP SINGH Vs. SUBHASH CHANDER JAIN

JUDGEMENT

(1.) Plaintiff/respondents Nos. 1 to 3 defendant No. 1/appellant are neighbours having their properties in the city of Ludhiana. Sometime in the month of August, 1978, the appellant constructed a bhatti (baking oven) in his premises. He also moved an application to the Municipal Corporation of Ludhiana seeking grant of licence to run the bakery. The plaintiffs raised a protest and then filed a suit seeking an injunction against the appellant restraining him from running/operating the bhatti, and also an injunction against the Municipal Corporation restraining it from issuing the licence sought for by the appellant. During the pendency of the suit the licence under Section 342 of the Punjab Municipal Corporation Act, 1976 was granted by the Municipal Corporation to the appellant. By its judgment and decree dated 3-3-1981 the trial Court dismissed the suit against the Municipal Corporation forming an opinion that inasmuch as the licence had already been issued the prayer for the grant of preventive injunction in that regard was rendered infructuous, also that the Municipal Corporation could not be restrained by the Civil Court from exercising a statutory power by issuing an injunction. The trial Court also observed that if the operation of bhatti by the defendant No. 1 was a source of nuisance to the neighbours or any other persons, an objection could be raised before the Municipal Commissioner who could either cancel the licence already granted or could refuse to renew the same further. So far as the relief sought for against the defendant No. 1/appellant is concerned, the trial Court was of the opinion that the bhatti was proposed to be run in a locality which was purely residential having been so earmarked in the town planning scheme also and further the operation of bhatti would result in emitting smell and generating heat and smoke which taken together would amount to nuisance and so the plaintiffs were entitled to issuance of an injunction restraining the defendant No. 1/appellant from running the bhatti for manufacturing bakery products in his house. Accordingly, the suit decreed against the defendant No. 1/appellant injuncting him from running the bhatti.

(2.) The defendant No. 1 preferred an appeal before the Additional District Judge who formed an opinion that the locality was not purely a residential one as a few other commercial activities were also being carried on in the vicinity of the premises belonging to the parties. The learned Additional District Judge himself carried out an inspection of the bhatti constructed by the defendant No. 1. He found that there was a chimney installed in the bhatti which was about 12 feet in height. The designing of the bhatti revealed that the fire-wood would burn in between two parallel brick-linings and the heat generated by burning of the fire-wood would not travel much beyond the bhatti so as to cause any inconvenience to others. In the opinion of the learned Additional District Judge the operation of the bhatti was not likely to cause any such nuisance which could be termed actionable. On such findings the appeal was allowed setting aside the decree passed by the Trial Court.

(3.) The plaintiffs preferred second appeal before the High Court. The learned single Judge who heard the second appeal felt not happy about the learned Additional District Judge having disposed of the appeal basing the judgment mostly on the opinion formed by carrying out an inspection of the defendant No. 1's premises. Without discussing the evidence in details, the High Court made an observation that the plaintiff Subhash Chander, PW-1, and other witnesses produced by him had stated that the bhatti would emit smoke, heat and smell which were nuisance to the residents of the locality. The High Court also referred to certain correspondence exchanged between the district health authorities and the Municipal Corporation. The High Court observed:-