IN THE COURT OF SHRI A.K. AGRAWAL CIVIL JUDGE­01 
                        ( WEST),  TIS HAZARI COURTS, DELHI...

CS No. 14/16

Sh.  Sachin Mathur

                                                                                                ............Plaintiff 

vs. 

BSES YPL

                                                                                             ............Defendant

08.04.2016

ORDER

Vide this order, I will dispose of an application under order 39 Rule 1 and 2 CPC moved by the plaintiff.

In brief, the suit of the plaintiff is that he is running a proprietorship firm in the name of "Ashok Engineering Works" and is engaged in the business of "electroplating". He is also a registered electricity consumer of defendant no.1 vide CA No. 000100031545 for a sanctioned load of 24 KW. Further states that he has a license of NDMC to run his aforesaid factory and has also got "consent" as per provisions of Air ( Prevention and Control of Pollution ) Act, 1981 (for short "Air Pollution Act") and there has been no violation of any provision of the said Act.

Plaintiff alleges that on 23.12.2015, defendant no.1 disconnected his electricity supply without any rhyme, reason or show cause notice. Upon enquiry, it was orally informed to plaintiff at the office of defendant that the disconnection was C.S No. 14/16 Sachin Mathur vs BSES YPL 1/6 done on the directions of defendant no.2 i.e. Delhi Pollution Control Comittee (for short "DPCC"). As per plaintiff, he did receive a show cause notice dated 28.10.2015 from DPCC, however he is not in violation of any provision of Air Pollution Act and had submitted a reply dated 30.03.2015 to the said show cause notice, denying the allegations made in the same. Moreover he also holds a certificate of consent order issued by DPCC, therefore show cause notice got satisfied.

Plaintiff alleges that despite no order of DPCC or any other authority for disconnection of electricity, defendant no.1 had disconnected the same without giving any opportunity of being heard to the plaintiff. Due to disconnection of electricity he has suffered heavy losses in his business. Accordingly, this suit has been filed by him seeking direction to defendant no.1 to restore his electricity. Initially suit was filed only against BSES YPL, however vide Order dated 04.02.2016 of this court, plaintiff was directed to implead DPCC as a party to the suit as defendant no.2.

Written Statement has been filed by both the defendants. In its W.S, defendant no.1 admits that plaintiff is availing electricity connection from it and is regularly making payment of the bills. However it is submitted that plaintiff is engaged in the electroplating business, which is within the list of 33 seriously polluting industries (SPIs) and plaintiff has failed to show any valid "consent" to operate his industry. The plaintiff has consent to operate his factory only till the year 2008 and no further consent has been given by the DPCC thereafter. Further states that electricity connection of plaintiff has been disconnected only because of the directions issued by DPCC which was further in compliance with direction of Hon'ble C.S No. 14/16 Sachin Mathur vs BSES YPL 2/6 National Green Tribunal.

It is further stated that defendant no.1 has no objection to restore the electricity of plaintiff if he obtains consent order from DPCC. It is also stated that the very issuance of show cause notice by DPCC to the plaintiff shows that there is no valid consent to operate in favour of plaintiff and he is presuming existence of consent as per his on interpretation and interest.

W.S has been filed on behalf of defendant no.2 stating that civil court lacks jurisdiction to entertain suit or proceeding in view of Section 22, 46 and 58 of Environment Act, 1986, the Air ( Prevention and Control of Pollution) Act, 1981 and The water ( Prevention and Control of Pollution) Act, 1974, respectively. Further states that in view of Judgment of Hon'ble Supreme Court in para no. 39 of AIR 2012, SC 3081, any cases filed or pending prior to the coming to force of National Green Tribunal (for short "NGT"), has to be transferred to NGT and this suit is not maintainable. It is further stated that in the entire plaint, there is no cause of action qua DPCC, hence the suit is liable to be dismissed.

It was denied that there was any valid consent given by DPCC in favour of plaintiff or that plaintiff is complying with environment laws. It is submitted that plaintiff had obtained consent from DPCC which was valid only till 13.05.2008 and there is no subsequent consent given to him. The unit of plaintiff is engaged in the activity of electroplating (job work) which has been identified as seriously polluting industry. Further the unit of plaintiff is situated at Anand Parbat Industrial Area which is redevelopment area and does not have Common Effluent Treatment Plant C.S No. 14/16 Sachin Mathur vs BSES YPL 3/6 (CETP) to treat the waste water generated from the said industrial area. Therefore, no consent as well as authorization is being granted to the units situated there. Further states that plaintiff had applied for renewal of consent on 14.06.2012 for three years but the same was not granted. It was however denied that any direction has been given by DPCC to defendant no.1 for disconnection of electricity.

It is also stated that the Hon'ble NGT vide its order dated 17.11.2014 in OA No. 196/14 had constituted State Level Committee for compliance of various directions relating to seriously polluting industries operating without consent from the pollution Control Board including directions for closure. In subsequent proceedings, it was also decided that if any seriously polluting industries are found, the same shall be closed within four weeks by DPCC. The other contentions were denied and prayer is made for dismissal of suit.

Vide this application U/o 39 Rule 1 and 2 CPC, plaintiff is seeking temporary injunction that defendant no.1 be directed to restore his electricity supply and not to disconnect it during the pendency of the suit. Reply has been filed by defendant opposing the said application on the same ground as taken in the W.S I have heard arguments advanced by the Ld. counsels for parties and carefully perused the record. The law is well settled regarding the grant of interim injunction. Applicant has to prove three basic ingredients for grant of interim injunction:

                                2. balance of convenience


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                                 3. irreparable injury

As far as prima facie case is concerned, it has not been denied on behalf of plaintiff that the business of electroplating does not fall under the category of seriously polluting industries. It is also admitted by his counsel during arguments that plaintiff does not have a written consent order from DPCC for the year 2016 though this fact is not mentioned in plaint. Plaintiff's contention however is that he is having a valid implied consent from DPCC since he had moved an application dated 14.06.2012 seeking consent for five years and this application was not rejected by the defendant no.2. As per Section 25 (7) of Water Pollution Act, if the concerned authority does not reply or reject the application within a period of four months, it shall be deemed that consent has been granted. Hence in view of the above provision, plaintiff is deemed to be having a valid consent in law as his application was neither replied nor rejected. On court query, counsel for plaintiff has however failed to disclose for how many years, this implied consent shall be deemed to be in force in law but insists that the same has to be treated for a period as mentioned in the application of plaintiff i.e. 5 years.

Perusal of record shows that the previous consent order which was passed in favour of plaintiff, was only for a period of three years till year 2008 and under such circumstances, if at all, any presumption is to be drawn that there was an implied consent in favour of plaintiff, it ought to be treated only for a period of three years and not for a period of five years. Even otherwise, after issuance of show cause notice by defendant no.2 against the plaintiff, the said implied consent if any, cannot C.S No. 14/16 Sachin Mathur vs BSES YPL 5/6 be deemed to be still in force. Moreover this show cause notice of defendant no.2 has not got satisfied as has been falsely mentioned by plaintiff in his plaint but defendant no.2 is mulling further action against plaintiff as per law.

It is further pertinent to mention that plaintiff has not denied the fact that the area wherein his factory is located, does not have any common effluent treatment plant (CETP) though it was contended during arguments that plaintiff will comply with all provisions of law as required in this regard. However the court cannot presume what will happen in future and can only take into consideration, the present circumstances. Having considered all the facts and circumstances, in my considered opinion, till the time plaintiff obtains a valid written consent order from defendant no. 2, he is not entitled to any interim relief from this court especially in view of directions given by Hon'ble NGT from time to time qua seriously polluting industries.

I do not find any prima facie case in favour of plaintiff. hence there is no need for discussing the other requirements of interim relief regarding balance of convenience and irreparable loss. With these observations, the injunction application of plaintiff U/o 39 Rule 1 and 2 CPC stands dismissed.

It is clarified that nothing mentioned herein shall tantamount to expression of opinion on the merits of the case.

 Announced in the open court                                                  ( A.K. Agrawal)
today on 08.04.2016                                                  Civil Judge ­01 ( West)/Delhi




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