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          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 13TH DAY OF MARCH, 2014

                        BEFORE

     THE HON'BLE MR.JUSTICE ARAVIND KUMAR

      WRIT PETITION NO.103396/2014 (GM-CPC)

BETWEEN

1.   MAILARAPPA S/O. SHASHIDAR KALLIHAL
     AGE: 35 YEARS, OCC: PRIVATE
     R/O. SAPTAPUR, MICHIGAN COMPOUND
     DHARWAD.

2.   FAIROZ KHAN S/O. NOORULLAH KHAN SOUDAGAR
     AGE: 64 YEARS, OCC: RETD.
     R/O. SAPTAPUR, MICHIGAN COMPOUND
     DHARWAD

3.   RAJA HYDER S/O. ANNERUDDIN SUNGAD
     AGE: 30 YEARS, OCC: PRIVATE
     R/O. SAPTAPUR, MICHIGAN COMPOUND
     DHARWAD

4.   MOHAMMAD ARIF S/O. ABDUL HAMEED TEENWALE
     AGE: 39 YEARS, OCC: BUSINESS
     R/O. SAPTAPUR, MICHIGAN COMPOUND
     DHARWAD

5.   SURESH S/O. BASAVANT WARANG
     AGE: 46 YEARS, OCC: PRIVATE
     R/O. SAPTAPUR, MICHIGAN COMPOUND
     DHARWAD.

6.   KALEEMULLAH
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      S/O. MOHAMMAD IQBAL DIWALDAR
      AGE: 28 YEARS, OCC: PRIVATE
      R/O. SAPTAPUR, MICHIGAN COMPOUND
      DHARWAD.                        ..... PETITIONERS

(BY SRI C.V.ANGADI, ADV.)

AND

1.    SAMPAT S/O. PUNDALIK RAJAGERI
      AGE: 41 YEARS, OCC: CARPENTER
      R/O. SAPTAPUR, MICHIGAN COMPOUND
      DHARWAD

2.    COMMISSIONER,
      HDMC, DHARWAD

3.    ASSISTANT COMMISSIONR
      HDMC DHARWAD, SAPTAPUR
      MICHIGAN COMPOUND
      DHARWAD.

4.    DISTRICT COMMISSIONER
      DHARWAD

5.    AIR POLLUTION CONTROL OFFICE
      LAKAMANAHALLI INDUSTRIAL AREA
      DHARWAD
      REP.BY ENVIRONMENTAL OFFICER.    ..... RESPONDENTS

(BY SRI ARUN L.NEELOPANT AND
    SRI SHRIHARSH A.NEELOPANT, ADV. FOR C/R1,
    SRI M.G.NAGANURI, ADV FOR R2,
    SRI VINAYAK S.KULKARNI, HCGP FOR R4,
    NOTICE TO R5 DISPENSED WITH)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER IN MISC.APPEAL NO.32/2013 DATED 09.01.2014 PASSED
BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND AMACT,
DHARWAD (ANNEXURE-A TO THE WRIT PETITION) AND THE
ORDER PASSED BY THE III ADDITIONAL CIVIL JUDGE (JR.DN)AND
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JMFC, DHARWAD AT DHARWAD ON I.A.NO.VII DATED 02.09.2013
IN O.S.NO.291/2012 ANNEXURE-B BY ALLOWING I.A.NO.VII,
FILED BY THE PETITIONERS IN O.S.NO.291/2012, THEREBY
RESTRAINING THE RESPONDENT NO.1 FROM RUNNING THE
WOOD INDUSTRY AND ETC.,

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:


                            ORDER

Though the matter is listed for preliminary hearing, by consent of learned advocates appearing for the parties, it is taken up for final disposal.

2. Heard Sri C.V.Angadi, learned counsel appearing for the petitioners, Sri Arun L.Neelopant, learned counsel appearing for caveator/respondent No.1, Sri M.G.Naganuri, learned counsel appearing for respondent No.2 and Sri Vinayak S.Kulkarni, learned High Court Government Pleader appearing for respondent No.4. Issuance of notice to respondent No.5 is dispensed with. Parties are referred to as per the rank in the trial Court. :4:

3. Plaintiffs have filed a suit in O.S.No.291/2012 seeking for declaration that wood factory situated at Michigan compound, Dhawad, is an illegal factory since it is run without valid license and same is causing nuisance by way of noise pollution. When the matter was set down for evidence i.e., after a period of one year from the date of filing of the suit, an application for temporary injunction came to be filed by the plaintiffs. 1st defendant resisted the said application by filing detailed statement of objections. Trial Court after considering rival contentions by order dated 02.09.2013 dismissed the application on the ground that the plaintiffs had kept quiet all along from the date of filing of the suit and Pollution Control Board had issued Environmental Clearance Certificate specifying that the noise level should not exceed 75 decibels during day time and 70 decibels at night time and also on the ground that 1st defendant had already obtained an order :5: of perpetual injunction against the Hubli Dharwad Municipal Corporation namely the Corporation restraining them from running the industry.

4. Being aggrieved by this order, plaintiffs filed an appeal in Misc.Appeal No.32/2013 which came to be allowed in part by setting aside the order of trial court and remanding the matter back to trial court with a direction to appoint a Court Commissioner on an application filed by either side of the parties and after seeking necessary report with regard to allegations made by plaintiffs regarding noise and air pollution and to dispose of the interlocutory application afresh in accordance with law. I am of the considered view that order of lower Appellate Court does not suffer from any infirmity whatsoever. Impugned order does not indicate as to who should be appointed as Court Commissioner and if same is clarified it would meet the ends of justice. :6:

5. Undisputedly, for establishing an industry of this nature, 1st defendant had applied with the Karnataka State Pollution Control Board and obtained a Consent Certificate on 25.08.2011 for the period 01.01.2011 to 31.12.2020, Consent Order had been granted fixing the noise pollution level at 75 decibels during day time and 70 decibels during night time. It is this consent order issued by the Pollution Control Board which swayed in the mind of the trial Court to dismiss application for injunction. However, the Corrigendum dated 19.05.2012 issued by the Pollution Control Board has not been noticed by the trial Court. Though this was available with the parties, for reasons best known, neither of the parties produced this before the lower appellate Court also. De-hors non-production of said Corrigendum issued by Pollution Control Board, lower Appellate Court has observed that a Court Commissioner can be appointed to record the noise pollution level of :7: the 1st defendant's industry and thereafter I.A. for temporary injunction can be considered. When a statutory authority is empowered to grant Consent Order under the Air (Prevention and Control of Pollution) Act, 1981, it is the said authority alone which would be empowered to find out as to whether there is any infraction of the consent order given by it or the conditions stipulated for grant of such consent has been violated by the Licensee. In the light of the aforesaid facts, I am of the considered view that it would suffice if the order of the lower Appellate Court is clarified to the effect that Court Commissioner proposed to be appointed as ordered by the lower Appellate Court shall be construed as appointing an Official of the Karnataka State Pollution Control Board as Court Commissioner to record the noise level generated from the 1st defendant- Industry. Either of the parties can file a necessary memo to the said effect before the trial court and on :8: their failure to do so, trial Court itself would be at liberty to suo-motto appoint an Official of the Karnataka State Pollution Control Board to record the noise pollution level and on receipt of the report, it shall consider IA-I for temporary injunction on merits and in accordance with law by affording opportunity to both the parties. All contention of both parties are left open.

With this observation, writ petition stands disposed of. No costs.

SD/-

JUDGE Jm/-