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S.B.CIVIL WRIT PETITION NO.4276/2006.
Prem Kanwar Vs. State of Rajasthan & Ors.
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S.B.CIVIL WRIT PETITION NO.4275/2006.
Prem Kanwar Vs. State of Rajasthan & Ors.
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Date of Order :: 26th November 2008.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. N.L.Joshi, for the petitioner.
Mr. B.L.Choudhary, for the respondents.
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BY THE COURT:
These two writ petitions were heard together for having been preferred by the defendant against the same order dated 26.07.2006 as passed by the Civil Judge (Junior Division) Rajgarh, District Churu in Civil Suit No.36/2006 whereby the application for amendment of the plaint as moved by the plaintiffs-respondents has been allowed and an application moved by the petitioner for rejection of plaint has been disallowed; and are taken up for disposal by this common order.
The respondents-plaintiffs Paramveer Singh and Bhani Singh have filed a suit for mandatory and perpetual injunction raising complaint against establishment of a brick kiln by the petitioner-defendant No.1 Smt.Prem Kanwar while joining the State of Rajasthan through the Collector, Churu, the Project Officer, District Industries Centre, Churu, the Director, Pollution Control Board, Bichhwal, Bikaner, the Mining Engineer, Mines & Geology Department, Bikaner and the 2 Superintending Engineer, Apani Yojana, Churu as the defendants Nos. 2 to 6 respectively. The plaintiffs averred in the plaint that the petitioner-defendant No.1 intended to establish a brick kiln on an agricultural land comprised in khasra No.652/632 situated at village Chainpura Bada, Tehsil Rajgarh District Churu; that the kiln was required to be established only after obtaining the licence from the defendant No.3, the permission from the defendant No.4, and the land use conversion order from the defendant No.2. It has been alleged that the kiln was sought to be established only at distance of 500 metres from the abadi of the village Chainpura Bada and under the rules, permission to establish such a kiln cannot be given within 1.5 kms. of the abadi area. The plaintiffs have further stated various circumstances wherefor the kiln would result in causing pollution, inconvenience and injury to them and other villagers and have alleged that its establishment at the given place would be dangerous for the inhabitants of the village. The plaintiffs have also averred that the petitioner-defendant No.1 having political clout has prevailed upon the defendants Nos. 2 to 6 to issue necessary licence, certificate and conversion orders and the defendants had illegally extended the permission for establishing the offending brick kiln. The plaintiffs have further averred that despite requests, the defendants were not refraining from establishing the said brick kiln and if commissioned, it would 3 cause serious inconvenience and injury to the plaintiffs and other villagers; and have sought perpetual and mandatory injunctions for preventing establishment and functioning of the disputed brick kiln.
It appears that in this suit, an application for temporary injunction was also moved by the plaintiffs and a Commissioner inspected the site and made his report on 22.06.2006, inter alia, to the effect that the disputed brick kiln was found commissioned and functional. The petitioner- defendant No.1 thereafter moved an application under Order VII Rule 11 of the Code of Civil Procedure ('CPC') in the suit (Annex.3 in CWP No.4276/2006) with the submissions that the offices of the defendants Nos.2, 3, and 6 were situated at different places in District Churu whereas the offices of defendants Nos.4 and 5 were situated at different places in Bikaner and the defendant No.1 was the resident of village Chainpura Bada Tehsil Rajgarh; hence, according to the petitioner, for the defendants being situated at different places, the plaintiffs were not having a joint cause of action against them and the plaint was required to be rejected on this count alone. It was further submitted that all the proceedings related to issuance of licence for the disputed kiln have either taken place or were to take place at Bikaner and hence, the suit was not of the jurisdiction of the Court at Rajgarh. The petitioner further submitted that the main relief in the suit was for 4 preventing commissioning of the disputed kiln and the plaint was presented on 19.06.2006, whereas it was clear from the report of the Commissioner as made on 22.06.2006 that the kiln had already been established and commissioned and for this reason also, the plaint was required to be rejected. The petitioner submitted yet further that the requisite conversion order was issued on 29.03.2006 and kiln was established in accordance with the rules; and the plaint was required to be required because plaintiffs have not challenged the order of conversion in appropriate proceedings.
The plaintiffs, while resisting the aforesaid application moved by the petitioner under Order VII Rule 11 CPC and while maintaining that the plaint was not liable to be rejected, moved an application under Order VI Rule 17 CPC (Annex.3 in CWP No.4275/2006) seeking to amend the plaint. The plaintiffs submitted in this application for amendment that at the time of presentation of the plaint, the defendant had obtained the conversion order and provisional licence for establishing the kiln but the plaintiffs were not aware of such documents; that after filing of the suit, the defendant No.1 commissioned the kiln with hectic efforts before site inspection by the Commissioner; that the order regarding the land conversion was noticed by the defendants only after the averments were made to that effect in the application under Order VII Rule 11 CPC; and that in the given circumstances, it 5 had become necessary for them to seek amendment of the plaint. The plaintiffs sought amendment of the plaint so as to incorporate the averments that the defendant-petitioner got issued the order for land use conversion while using her influence and such an order was inconsequential being wholly illegal. The plaintiffs further sought permission to take the averments that the defendants had illegally commissioned the disputed kiln that was likely to cause injury and loss to the plaintiffs; and to seek the relief that by way of perpetual injunction, the defendants be required to close down the disputed kiln and to refrain from doing anything that might have adverse effect on the health of the plaintiffs and other villagers.
The learned Trial Court in its impugned order dated 26.07.2006 took up the aforesaid application for amendment for consideration at the first and observed that the plaintiffs intended to amend the plaint so as to incorporate such facts that were not in their knowledge at the time of filing of the suit and did not agree with the submissions of the petitioner that the amendment was likely to change the nature of the suit. The learned Trial Court was also of the opinion that the amendment was necessary for determination of the real questions in controversy and there had been subsequent events after filing of the suit inasmuch as, prima facie, the disputed kiln was not functional at the time of filing of the suit 6 but was found commissioned as per the Commissioner's report. The learned Trial Court, accordingly, allowed the application and permitted the amendment prayed for. The learned Trial Court thereafter proceeded to reject the application moved by the petitioner under Order VII Rule 11 CPC with the observations that situs of the defendants and accrual of cause of action against them had already been explained by the plaintiffs and the plaint was not liable to be rejected on the submission as made by the petitioner. The learned Trial Court also observed that the disputed kiln had been established within its jurisdiction and otherwise mixed questions of law and facts were involved that would be determined after evidence; but on the facts as stated by the petitioner-defendant No.1, the plaint could not be rejected under Order VII Rule 11 CPC. The order so passed by the learned Trial Court on 26.07.2006 has been challenged by way of these separate writ petitions.
In CWP No.4275/2006, while challenging the order allowing the application for amendment, learned counsel for the petitioner has referred to the plaint averments and strenuously contended that as per such averments, all the facts were in the knowledge of the plaintiffs and when they omitted to take all the requisite averments, the amendment could not have been allowed so as to change the cause of action. Learned counsel also contended that by allowing the 7 amendment, nature of the suit would change and, therefore, amendment could not have been allowed. While challenging the order as made on the application under Order VII Rule 11 CPC in CWP No.4276/2006, learned counsel contended that the plaint discloses no cause of action at all; that the plaintiffs could have adopted the proceedings before the competent authorities and hence, per Section 41(h) of the Specific Relief Act, the suit was not maintainable. Learned counsel for the non-petitioners-respondents has duly supported the order impugned.
Having heard learned counsel for the parties and having given thoughtful consideration to the rival submissions and having perused the material placed on record, this Court is clearly of opinion that these writ petitions remain bereft of substance and deserve to be dismissed.
So far the application for amendment is concerned, the learned Trial Court has taken note of the rival submissions and has found that essentially the prayer for amendment was made with reference to the subsequent events and has found it proper to allow the amendment for effectual determination of the questions involved in the case. Having regard to the overall circumstances of the case, the submissions of the plaintiffs about themselves being not aware of the specific land use conversion order could not have been dubbed as false or incorrect nor the averment as taken in the original plaint could 8 have been construed to mean that the plaintiffs were specifically aware of the land conversion order dated 29.03.2006 as made in favour of the petitioner. Amongst other aspects, it is noticed from the documents placed by the petitioner on record that the permission for earth excavation was issued by the Mining Engineer, Bikaner (Annex.8 in CWP No.4275/2006) only on 30.06.2006 and the recommendation of the Regional Officer of the State Pollution Control Board was issued on 28.07.2006 (Annex. 11 in CWP No. 4275/2006) with a note to the petitioner that production had been started and immediately the application for requisite permission be made and else, necessary proceedings under Air (Prevention of Pollution) Act, 1981 would be adopted. The plaint was presented on 19.07.2006. In the overall circumstances of the case and particularly looking to the subsequent events of commissioning of kiln and issuance of aforesaid orders/recommendations only after filing of the suit, the amendment was definitely necessary for effectual determination of the questions involved in the suit; and the learned Trial Court cannot be said to have committed any jurisdictional error in allowing the amendment as prayed for nor the impugned order discloses any such jurisdictional error leading to manifest failure of justice so as to warrant interference under Article 227 of the Constitution of India. 9
So far the application under Order VII Rule 11 CPC is concerned, the plaint as framed for the purpose of reliefs as claimed cannot be said to be suffering from the vice of non- disclosure of cause of action nor the suit could be said to be barred by any law. Merely because some of the parties to the suit like the Mining Engineer and the Director of Pollution Control Board were said to be situated at Bikaner, it cannot be said that the suit in relation to the cause as stated, raising grievance against the disputed brick kiln, was not of the jurisdiction of the Court at Rajgarh where the kiln was established and commissioned. The argument as made with reference to Section 41 (h) of Specific Relief Act also remains bereft of substance. Whether in the given case the relief could have been obtained by way of alternative proceedings and whether the injunction as prayed for be granted or not, are the questions to be gone into in the suit but on such submissions, it cannot be said that any bar of law operates over the trial of the suit. The learned Trial Court has rightly rejected the application under Order VII Rule 11 CPC being bereft of substance. This apart, in view of the relief as claimed in the application under Order VII Rule 11 CPC, for rejection of the plaint, the order passed on the said application was obviously open to revision before this Court. The petitioner has yet chosen to prefer a writ petition in relation to the said order too. The petition against such part of the impugned order (CWP 10 No. 4276/2006) is required to be dismissed on this count also. However, and in any event, the petitioner has no case on merits for the impugned order does not disclose any jurisdictional error so as to call for interference.
As a result of the aforesaid, both these writ petitions fail and are, therefore, dismissed. No costs.
(DINESH MAHESHWARI),J.
MK