Case: RATNAGIRI NAGAR PARISHAD Vs. GANGARAM NARAYAN AMBEKAR &amp; ORS

plaintiff, however, must show a strong case of probability that the apprehended mischief will in fact arise in order to induce the court to interfere. If there is no reason for supposing that there is any danger of mischief of a serious character being done before the interference of the court can be invoked, an injunction will not be granted. 8. In our opinion a nuisance actually in existence stands on a different footing than a possibility of nuisance or a future nuisance. An actually-existing nuisance is capable of being assessed in terms of its quantum and the relief which will protect or compensate the plaintiff consistently with the injury caused to his rights is also capable of being formulated. In case of a future nuisance, a mere possibility of injury will not provide the plaintiff with a cause of action unless the threat be so certain or imminent that an injury actionable in law will arise unless prevented by an injunction. The court may not require proof of absolute certainty or a proof beyond reasonable doubt before it may interfere; but a strong case of probability that the apprehended mischief will in fact arise must be shown by the plaintiff. In other words, a future nuisance to be actionable must be either imminent or likely to cause such damage as would be irreparable once it is allowed to occur. There may be yet another category of actionable future nuisance when the likely act of the defendant is inherently dangerous or injurious such as digging a ditch across a highway or in the vicinity of a childrens school or opening a shop dealing with highly inflammable products in the midst of a residential locality. xxx xxx xxx 10. In the case at hand, it is not disputed that the bhatti was not operational on the date of filing of the suit. A bhatti (baking oven) is not an activity which by itself is illegal or inherently dangerous or injurious. It cannot also be said that the bhatti merely because it has been constructed or become operational would pose such an injury as would be irreparable or would be incapable of being taken care of by a process known to law. The pleadings raised by the plaintiffs do not and could not have set out the nature and extent of injury, if any, caused or likely to be caused to the plaintiffs. The High Court has at one place observed that the bhatti would emit smoke, heat and smell which would be a nuisance to the residents of the locality. At another place it has stated that smoke, gases and ash etc. which were emitted from the furnace would certainly be a nuisance to the residents of the locality. The findings so recorded are oscillating and are not clear and specific. They are guesswork. A clear finding as to nuisance could not have been recorded by basing it on generalised statements of certain witnesses stating that a bhatti emits smoke, heat and smell which statements would be mere ipse dixit of the witnesses. There is no foundation either in pleadings or in evidence for observation made by the High Court as to gases, ash etc. emitting from the furnace. In our opinion, no case for quia timet action was made out. The suit filed by the plaintiffs was premature. No relief, much less by way of preventive injunction, could have been allowed to the plaintiffs. In our opinion, the suit as filed by the plaintiffs should be dismissed with liberty to file an appropriate suit on proof of cause of action having accrued to the plaintiffs consistently with the observations made hereinabove. (emphasis supplied) We have no hesitation in taking the view that the first appellate Court proceeded on a mere possibility of injury likely to be caused on account of setting up of the proposed Project. On the other hand, the defendants asserted that the Project has been conceived and the suit land has been identified for that purpose. The Project is at a nascent stage for which permissions would be obtained from the concerned authorities under the environment laws before implementing the same. At this initial stage itself, the civil Court was moved by the plaintiffs on the basis of their understanding of the situation. 18. Further, Section 41(f) of the 1963 Act clearly mandates that an injunction cannot be granted to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. Similarly, the respondent No. 20 (State of Maharashtra) is right in contending that the plaintiffs would have equally efficacious relief by resorting to other mode of proceedings. To wit, when the proposal regarding setting up of the Project is being finalised and permissions are granted by the competent authority under the concerned statutory dispensation, at that time, the affected parties would be free to make representation which can be considered by the competent authority appropriately. Hence, the civil Court ought not to have granted injunction simpliciter also because of the stipulation in Section 41(h) of the 1963 Act, wherein it is made amply clear that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust, an injunction cannot be granted. The scheme of Section 41 of the 1963 Act predicates that the civil Court must refuse to grant injunction in the situations referred to therein vide clauses (a) to (j). The recent amendment to that provision by Act 18 of 2018 has inserted clause (ha), for making it explicitly clear that the civil Court must refuse to grant injunction if it would impede or delay the progress of completion of any infrastructure project, such as the present one. Indeed, this amended provision does not apply to the present case. However, the Court could not have answered the matter in issue on the basis of assumptions and conjectures, much less unsubstantiated claim of the plaintiffs.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is an Act to provide for establishment of a National Green Tribunal (NGT) for effective and expeditious disposal of cases relating to, amongst others, environmental protection including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. Chapter III of the Act delineates the jurisdiction, powers and proceedings of the TribunalIndeed, the present suit was filed prior to that date. However, it was pending before the civil Court even after the establishment of the Tribunal (NGT). For, the trial Court decided the suit only on 31.1.2011. Concededly, the trial Court has not even adverted to the express provision in the form of Section 29 regarding bar of jurisdiction of the civil Court. On perusal of the tenor of the plaint and the subject matter of the present suit, it is indisputable that the case plainly involved substantial question relating to environment including enforcement of legal right relating to environment. That cause was the foundation for the relief of permanent injunction sought by the plaintiffs. By virtue of Section 29 and in particular the dictum in paragraph 41 of the reported decision of this Court, the civil Court ought not to have continued with the suit. It is a different matter that the trial Court chose to dismiss the suit on the finding that the plaintiffs had failed to substantiate the case set up by them in the plaint. Once the suit was barred by law, the civil Court could not have proceeded with the suit and at best, the parties could have been relegated before the NGT, the special forum created by the 2010 Act. Indeed, the trial Court did not have the benefit of the reported decision of this Court. For, the said decision was rendered on 9.8.2012. However, it is intriguing that even the first appellate Court and the High Court did not think it necessary to advert to the effect of Section 29 of the 2010 Act and in particular, the decision of this Court in Bhopal Gas Peedith Mahila Udyog Sangathan (supra). The fact that the suit was filed in earlier point of time, does not mean that the civil Court could have continued with the action (in this case, first appeal before the first appellate Court and the second appeal before the High Court being continuation of the suit) concerning the substantial question relating to environment including enforcement of legal right relating to environment. In any case, there remained no tittle of doubt after the exposition of this Court that such pending cause/action ought to be transferred to the NGT for adjudication thereof. As a concomitant of this conclusion, the findings and conclusions rendered in favour of the plaintiffs, in particular by the first appellate Court and the High Court, will be of no avail and in law stand effaced being without jurisdiction and nullity14. Arguendo, the plaint as filed by the respondent Nos. 1 to 19 also suffers from another fundamental deficiency. Indeed, it is a cleverly drafted plaint, so as to give an impression that the competent authority had not taken any decision in exercise of statutory powers until the filing of the suit. However, in the written statement, clear assertion has been made by the defendants (appellant and respondent No. 20) that the decision to allot suit land to the appellant and for setting up the Project was taken after due deliberation and consultation with the expert Committee including in exercise of statutory powers of the concerned authority in that regard. None of these decisions of the competent authority has been assailed by the plaintiffs nor any declaratory relief sought in that regard. In such a case, it would not be enough to ask for permanent injunction simpliciter and the suit so filed ought to have been rejected at the threshold on that count alone15. Applying the principle underlying these dicta, as no declaration has been sought by the plaintiffs in the present case, the suit for simpliciter permanent injunction could not be proceeded further at all. Even for this reason, the decree passed by the first appellate Court and confirmed by the High Court, cannot stand the test of judicial scrutiny. The Courts have clearly glossed over this crucial aspect, which disentitled the plaintiffs for relief of permanent injunction simpliciter16. Be that as it may, on a fair reading of the judgment of the trial Court, it is manifest that the trial Court had opined that the plaintiffs failed to substantiate the case set out in the plaint regarding the actionable nuisance. The trial Court justly analysed the evidence of the plaintiffs in the first place to answer the controversy before it. The first appellate Court, however, after adverting to the oral and documentary evidence produced by the parties, proceeded to first find fault with the evidence of the defendants to answer the controversy in favour of the plaintiffs. The first appellate Court committed palpable error in not keeping in mind that the initial burden of proof was on the plaintiffs to substantiate their cause for actionable nuisance, which they had failed to discharge. In such a case, the weakness in the defence cannot be the basis to grant relief to the plaintiffs and to shift the burden on the defendants, as the case may be. Thus understood, the findings and conclusions reached by the first appellate Court will be of no avail to the plaintiffs17. Be that as it may, the first appellate Court ought to have kept in mind the principle expounded in Kuldip Singh vs. Subhash Chander Jain & Ors. (2000) 4 SCC 50  We have no hesitation in taking the view that the first appellate Court proceeded on a mere possibility of injury likely to be caused on account of setting up of the proposed Project. On the other hand, the defendants asserted that the Project has been conceived and the suit land has been identified for that purpose. The Project is at a nascent stage for which permissions would be obtained from the concerned authorities under the environment laws before implementing the same. At this initial stage itself, the civil Court was moved by the plaintiffs on the basis of their understanding of the situation18. Further, Section 41(f) of the 1963 Act clearly mandates that an injunction cannot be granted to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. Similarly, the respondent No. 20 (State of Maharashtra) is right in contending that the plaintiffs would have equally efficacious relief by resorting to other mode of proceedings. To wit, when the proposal regarding setting up of the Project is being finalised and permissions are granted by the competent authority under the concerned statutory dispensation, at that time, the affected parties would be free to make representation which can be considered by the competent authority appropriately. Hence, the civil Court ought not to have granted injunction simpliciter also because of the stipulation in Section 41(h) of the 1963 Act, wherein it is made amply clear that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust, an injunction cannot be granted. The scheme of Section 41 of the 1963 Act predicates that the civil Court must refuse to grant injunction in the situations referred to therein vide clauses (a) to (j). The recent amendment to that provision by Act 18 of 2018 has inserted clause (ha), for making it explicitly clear that the civil Court must refuse to grant injunction if it would impede or delay the progress of completion of any infrastructure project, such as the present one. Indeed, this amended provision does not apply to the present case. However, the Court could not have answered the matter in issue on the basis of assumptions and conjectures, much less unsubstantiated claim of the plaintiffs.