IN THE COURT OF MS.RUCHIKA SINGLA
                                CIVIL JUDGE-01(NORTH) : DELHI

                                                   Suit No.345/2011

                                                     Mohd. Shahid
                                                          v.
                                                      BSES RPL


Present :            None

ORDER:

1. Vide this order, I shall dispose off the preliminary issue "Whether the Civil Court has jurisdiction to entertain the present suit in view of Section 46 of Air Prevention and Control of Pollution Act & Section 58 of Water Prevention and Control of Pollution Act?OPP" as framed on 17.10.2011. I have heard the arguments of both the parties and gone through the record carefully.

2. The counsel for defendant no.3 has taken a preliminary objection that the present suit is not maintainable u/s 46 of Air Prevention and Control of Pollution Act (hereinafter referred to as Air Act) & Section 58 of Water Prevention and Control of Pollution Act (hereinafter referred to as Water Act) as the civil courts jurisdiction to entertain such disputes is expressly barred. Counsel for defendant no.3 submits that under the Acts, such disputes can be entertained only by the authority as established under the Act and in case, the consumer has any grievance, he can taken up the matter with the Appellate Authority. Hence, it is submitted that the present suit is not maintainable.

3. The counsel for plaintiff has argued that as per defendant no.3 directions dated 13.7.2011, the plaintiff had been directed to close the dhaba Mohd. Shahid v. BSES RPL Suit no.345/2011 Page 1 of 3 which he has already done. It is argued that despite the same, defendant no. 3 gave directions to the defendant no.1 & 2 to disconnect the electricity and water meter respectively. Hence, he filed the present suit. It is argued that in these circumstances, he has no other remedy but to approach the civil court.

4. Undoubtedly Section 46 & Section 58 as mentioned earlier bar the jurisdiction of the court. However, the jurisdiction is barred only with respect of those matters which the Appellate Authority is empowered to deal with. In these circumstances, it is necessary to examine as to what all matters come within the jurisdiction of the Appellate Authority. The provision of appeal has been laid down u/s 28 of the Water Act & Section 30 of the Air Act. Under this section, it has been provided that when a person is aggrieved by an order of the Board, then that person can appeal to the Appellate Authority within 30 days from the date of the order. Hence, the appeal can be filed against those orders from which the person is aggrieved.

5. In the present suit, the plaintiff does not challenge the order passed by the board. He is infact alleging that he has already complied with the order and has closed down his dhaba. The defendant alleged that the dhaba is still working. Whether the dhaba is closed or not is a matter of trial. The present matter has been filed seeking injunction that the plaintiff's electricity and water connection may not be disconnected. The plaintiff nowhere disputes the validity of the order passed by the court. In these circumstances, in the opinion of the court, Section 46 & 58 does not apply.

6. It is further relevant to note that under these sections, the civil courts have been barred from passing any injunction order in respect of any action taken or to be taken in pursuance of the Act. At the cost of repetition, the plaintiff has alleged that he has already complied with the order of the Board. In these circumstances, the defendant no.3 shall not be justified in Mohd. Shahid v. BSES RPL Suit no.345/2011 Page 2 of 3 disconnecting the electricity and water connection of the plaintiff. The same can be done only if the order had not been complied with, which is a matter of trial. Hence, this part of the section also does not apply to the facts and circumstances of the present case. In view of the above discussion, the court is of the opinion, the present suit is maintainable. Hence, this issue is decided in favour of the plaintiff.

Put up for arguments on application u/o 39 rule 1 & 2 CPC for 14.02.2012.

Announced in the Open Court                                                            [RUCHIKA SINGLA]
Today on 03.01.2012                                                                CIVIL JUDGE-01(NORTH)
                                                                                             DELHI




Mohd. Shahid v. BSES RPL                                        Suit no.345/2011                  Page 3 of 3