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

3. Briefly stated, the respondent Nos. 1 to 19 filed the stated suit on 31.1.2005 in representative capacity being residents of different Wadas of the villages at Fansavle, Dandeadom, Mirjole, Majgaon and Kelye in District Ratnagiri. The gravamen of the issues raised in the stated suit was that the appellant – Ratnagiri Nagar Parishad intends to set up a Solid Waste Disposal Project (the Project) in the suit property at village Dandeadom, Taluka and District Ratnagiri bearing Gat No. 219 admeasuring 2H-46 Aars. ( For short, the suit land or the suit property) , which land had been allotted to the appellant by the State Government. The suit land is located around 10 kms. away from the limits of the Ratnagiri city at a hilly and sloppy area. The entire area is rocky and hard. The location selected for setting up the Project was wholly ill-advised, as it would entail in serious health problem for the villagers in the locality and also inevitably pollute the river nearby flowing from Kelye village through the villages Majgaon, Mhamurwadi upto Sakharat. Moreover, on this river, Sheel Dam is located on the boundary of Fanasavle village, which provides water supply to Ratnagiri city. Thus, the Project is likely to pollute the Dam water as well. It is asserted that the entire Kokan area receives heavy rainfall between months of June and October and considering the direction of flow of river and other streams in the nearby area, there is imminent possibility of causing severe water pollution due to the solid waste piled up on the suit property. Initially, some other site was identified for setting up the Project, but due to political intervention, it has been shifted to the present location, which is not at all ideal being a rocky hard and sloppy track. Other fallow lands are available in the Nagar Palika jurisdiction, which are more suited for the intended Project spread over in several acres and are at the base of the Ratnadurg Fort. The authorities had in fact commenced the process of acquiring that land near Bhataye seashore within the limits of Fansop village, but for reasons best known to the authorities, the idea to continue the Project at that location has been disbanded. It is asserted that there is no existing public road access to the suit land and the trucks carrying the solid waste will have to be provided access through private lands in the neighbourhood including that of some of the plaintiffs. Furthermore, the appellant had not taken any permission from the competent authority (the Health Officer of Jilla Parishad/Health Department). In substance, the grievance is substantially about possible environmental fallout due to setting up of the Project in the suit property and in particular, to the nearby river and dam, which is the source of water supply to habitants of District Ratnagiri4. The appellant filed written statement and refuted every assertion in the plaint about the possible environmental fallout due to setting up of the Project at the stated location. The appellant asserted that the land belonged to the State Government and only after due consultation and deliberations with all concerned, it has been allotted to the appellant for setting up of the Project thereat. Further, the necessity of setting up such a project need not be underscored. It is a statutory obligation of the appellant and also necessitated on account of directions issued by the Court in public interest litigation in that regard. The appellant is obliged to collect solid waste on daily basis from the localities within the District (Ratnagiri) and provide for mechanism to dispose of the same as per the standard protocol. Considering the ill-effects of process of collection and disposal of such waste, an expert opinion/report was submitted to the Government. It is stated that the Project would be set up strictly in conformity with the Environment (Protection) Act, 1986 (For short, the 1986 Act ) , which had already come into force including the Municipal Solid Wastes (Management and Handling) Rules, 2000 (For short, the 2000 Rules) . These Rules have been formulated on the basis of directions given by this Court. The appellant denied that the Project would be a cause for pollution, as all precautions would be taken and necessary environment clearances will be obtained from the competent authority. It is stated that initially the authorities had selected three places for setting up the Project, but it was realised that the other two locations would be non-compliant with the prescribed conditions under the concerned environment laws. As a matter of fact, the State Government had established a High-Level Committee to make recommendations about the location of the Project, on 5.12.2003 consisting of (1) Regional Officer, Pollution Control, (2) Sub- Divisional Forest Officer, (3) Jilla Parishad Geologist, Ground Water Survey and Development Machinery, (iv) Town Planner and (v) District Health Officer. The said Committee, after due deliberations identified the suit property as ideal for setting up of the proposed Project, which indeed would be compliant with all environment regulations. The appellant, therefore, stoutly denied the assertion in the plaint that the decision was taken by the appellant unilaterally and without following due process. The appellant also denied the assertion about likelihood of polluting the Dam water or river flowing from village Kelye through other villages upto the sea. The appellant denied the factual assertions in the plaint and called upon the plaintiffs (respondent Nos. 1 to 19) to substantiate the relevant facts stated therein. The appellant had specifically denied that the Project would be set up on the slope, as suggested in the plaint. Further, it is asserted that no waste, which will become rotten and wet or polluted water will be allowed to flow from the suit land. These precautions will be taken without exception and stringent conditions will be prescribed as is evident from the official records. In other words, the plaintiffs have made irresponsible and frivolous statements in the plaint without any basis to substantiate the same. According to the appellant, the suit was politically motivated. The appellant specifically asserted that the Project site was yet to be finalised by the appellant and would abide strictly by the recommendations of the experts providing for stringent conditions. The appellant asserted that because of the pendency of the suit proceedings, necessary permissions and clearances from the competent authority under the environment laws could not be pursued further. It is thus stated that the Project would be set up only after such permissions are granted and would be implemented under the strict supervision of the concerned authorities. The appellant also stated that the suit was not maintainable and ought to be dismissed with costs5. On the basis of rival stand, the trial Court framed six issues for determination as follows:Both sides produced oral and documentary evidence in support of their stand. The trial Court, after analysing the evidence adduced by the plaintiffs (respondent Nos. 1 to 19), noted that the assertions made by the plaintiffs were founded on their understanding of the matter and no proof to support that claim was forthcoming. The trial Court noted the admission given by the plaintiffs witnesses that no proof has been produced by them to establish the fact of existence of public settlements near the suit property. Also, that they had no knowledge or expertise about the solid waste Project nor they collected any information from any expert before asserting that the said Project would not be viable and entail in causing pollution to the Dam water and river as such. They also admitted that the case set out by them was on the basis of their personal knowledge and there was no scientific basis. In the cross-examination, they had admitted that before taking possession of the disputed land for the proposed Project, the Project Officer of the Nagar Parishad and other Officers had held discussion with the Dandeadom Sarpanch and members. These admissions clearly belied the case made out by the plaintiffs that the appellant had decided to set up the proposed Project unilaterally and without any consultation. The trial Court, therefore, proceeded to dismiss the suit filed by the respondent Nos. 1 to 19 by concluding thus: -15. In the present case, the Plaintiffs have not given the strong proof for establishing that there is residential colonies near the Proposed project. In the same way, they have not established the manner in which water pollution will be caused due to the proposed project. For the purpose of establishing that there will be water pollution due to the proposed project, it was necessary for the Plaintiffs to establish the so called Plan of the flow of Dandeadom river. For the purpose of establishing that there will be water pollution due to the project, it was necessary for the plaintiffs to give evidence of expert persons. The Plaintiffs have admitted in their cross examination that they have taken personal information of the solid Waste Project. The allegations made in the suit by the plaintiff seems to be their personal opinion. In the same way, it becomes clear that there is no scientific base to their opinion. As the Plaintiffs have established that there will be the alleged pollution in future, the question of giving the permanent injunction does not arise. The plaintiffs have not established that their legal right has been neglected. The Plaintiffs have not given prima facie evidence for giving the permanent injunction11. The answer of issues No. 1 to 4 is being given in the negative and the Order is being made as under:O R D E R1. Suit is being dismissed with costs2. Decree may be made accordingly6. The matter was carried in appeal by the respondent Nos. 1 to 19/plaintiffs. The first appellate Court after adverting to the rival contentions formulated following points for its consideration:The first appellate Court then adverted to the oral evidence of the witnesses examined by the plaintiffs and defendants (appellant and respondent No. 20) and went on to opine as follows: -28. After considering the oral evidence led by both the parties, it reveals that the oral evidence led by the plaintiff is more trustworthy and credible than the evidence led by the defendants. Because during cross examination witnesses for plaintiffs remained stick up to their version narrated by them in their examination in chief, but, here, so far as regards evidence of defendants witnesses, their statement in examination in chief is demolished by way of cross examination, as they have given above noted vital admissions. It reveals from oral evidence led by both the parties that the suit property is situated on hilly area, which is having stony surface. It also reveals that the suit property is having slope towards southern and western side. It also reveals that Dandeadam river is situated on the bottom of the slope. The witnesses for defendants itself also admitted that in Ratnagiri city there is a collection of 15 to 16 trucks solid waste per day. If such a huge wastage is going to be stored on the suit property, which is having slope towards river, then, definitely it will pollute river water. Because the plaintiffs have specifically pleaded and deposed that in the Konkan Region there is rain fall of 120 to 130 inch per year in rainy season. A judicial note can be taken of this fact that there is heavy rain fall in Konkan region in every rainy season. If such a huge wastage is going to be stored on the suit property, then definitely it will be flown into river because of slope and because of the heavy rain fall. If such a wastage will be flown into river water, because of its decomposition, it will be fermented and it will definitely pollute the river water. Admittedly river water flows from various villages and Dandeadam river joins with Sheel river within vicinity of Fansavale village. Admittedly dam is constructed over Sheel river from which there is water supply to Ratnagiri city. If such river waste is polluted due to the solid waste storage, then the entire water in Sheel dam will also be polluted and it will result ultimately causing danger to the life and health of citizens of Ratnagiri city and citizens of the vicinity. Therefore, the oral evidence of plaintiffs shows that the proposed project is dangerous for the life and health of the citizens, so also the suit property is not suitable and convenient for the proposed projectThe first appellate Court then adverted to the documentary evidence on record and opined as follows: -31. It reveals from over all careful scrutiny of the documentary evidence produced by both the parties that, the defendants are not coming before the Court with clean hands. Because the documentary evidence produced on record by both the parties clearly shows that previously S.No. 137/16 situated at village Kasop was acquired for the project of solid waste management, but, that project was cancelled and suddenly the defendants acquired the suit property for the project, for which no reason is given by the defendants. The defendants have not given any reason as to why they cancelled the project at village Kasop on S. No. 137/16. Admittedly, the property bearing S. No. 137/16 is situated at the distance of 3 to 4 kmtr. from Ratnagiri city, that too near sea shore. Admittedly the suit property is situated at the distance of 10 to 15 kmtr. from Ratnagiri city. Under such circumstances genuine question arises for what reasons the defendants cancelled their project on S.No. 137/16. To that effect it is the case of the plaintiffs that because of political pressure by the side of Kohinoor Hotel they cancelled the project. Considering entire evidence before the Court and considering facts and circumstances, I find substance in the submissions and evidence of plaintiffs to that effect. Because, S. No. 137/16 at village Kasop was suitable and convenient by all means and that too its compensation amount of Rs. 1,20,000/- was deposited by the defendant No. 1 under such circumstances, there was no reason for the defendants to cancel that project. But here that has been done highhandedly without any plausible reason32. The cross examination of defendant No. 1 shows that daily near about 15 to 16 trucks solid waste is collected in the Ratnagiri City. Admittedly, the suit property is situated at 15 kmtr. from Ratnagiri city. As per the evidence of D.W. 1 near about 16 trucks are being used daily for the management of solid waste. If we consider the expenses of shifting 16 trucks solid waste daily from Ratnagiri to suit property by trucks, then per year the defendant No. 1 has to spend lacs [sic.] of rupees for payment of trucks transportation charges. This also shows that the suit property is not suitable for solid waste management. Moreover, as per the evidence of D.W. 1 that the vehicles used for transportation of solid waste are open. As per the Municipal Solid Waste (Management and Handling) Rule, 2000 (hereinafter called as the Rule) clause 4 of Schedule 2 shows that, Vehicles used for transportation of wastage shall be covered. Wastage should not be visible to public nor exposed to open environment preventing their scattering. Therefore, this Rule shows that open vehicles can not be used for transportation of solid waste, but, here as per the admissions given by D.W. 2 open vehicles are being used. If such open vehicles carries solid waste upto the suit property, then again it will cause scattering of waste and it will cause pollution33. The plaintiffs have specifically proved that the suit property is situated in hilly area having sheer slope towards a river, which is situated at the bottom of the slope. In this respect, it is pertinent to note here the provision of the Rules. The defendant No. 1 have itself produced Municipal Solid Wastes (Management and Handling) Rules, 2000 at Exh. 125. After perusal of these Rules, it reveals that, certain guidelines in these Rules for selection of a property for such a Solid Wastes Project. Schedule 3 of these Rules deals with Site selection. Clause 8 of Schedule 3 shows that, the landfill site shall be away from water bodies. Here it is necessary to reproduce Clause 8 of Schedule 3 of ready reference. It is as under,Schedule 3(8) – The Landfill site shall be away from habitation clusters, forest areas, water bodies, monuments, National Parks, Wetlands and places of important cultural, historical or religious interest34. This clause 8 clearly indicates that, the Solid Waste Project must be away from water bodies and habitation clusters. But, here in the case at hand, the proposed project is situated near the river. Admittedly, in rainy season the water will flow from the project to the river and it will pollute the river water. Therefore, the proposed project is also against the Clause 8 of Schedule 3 and hence, it is illegal one35. The sum and substance of above discussion is that, it is an admitted position that S. No. 219 i.e. suit property is situated on hilly area having sheer slope towards river situated at its bottom. If such huge quantity of solid waste is being stored on the suit property, then in rainy season definitely it will decompose and it will be fermented and it will flow into the river water, because of which entire river water and dam water will be polluted. Admittedly, that Sheel dam water is being supplied to the citizens of Ratnagiri city and citizens in the vicinity. If a such polluted water is supplied, then it will cause danger to the life and health of the citizens. The defendants have not produced on record any document, which will show that the Pollution Control Board and Bhujal Survey Officer has surveyed the suit property as convenient and suitable for the project. No such clearance certificate about suit property is produced on record. So also the defendants have not produced on record any document, which will show that they will filter the water and supply it to the citizens. Therefore, if the water will be flown into river then definitely pollution will happen and it will cause danger to the life and health of the public. It is a constitution right of every citizen to get unpolluted air, water and environment. Right to life is provided under Article 21 of the Constitution of India. Project are being made for the welfare of public and not for causing danger to their health and life. For the reason stated above, if the project will be made on the suit property, then the [sic] water will be polluted and it will cause definitely an [sic] interference in the lawful rights of plaintiffs to get unpolluted water and environment. Under such circumstances, I find substances in the submissions of Ld. Advocate for the plaintiff and I record my findings to points No. 1 and 3 in the affirmative, point no. 2 in the negativeOn the basis of the aforesaid conclusions, the first appellate Court passed the following order to decree the suit filed by respondent Nos. 1 to 19: -O R D E R1. The appeal is allowed with costs2. The judgment and decree passed by Ld. Trial Court dated 31.01.2011 is hereby set aside3. the suit bearing Regular Civil Suit No. 25/2005 is decreed as under:(a) The defendants and their representative are hereby perpetually prohibited from starting proposed Solid Waste (Management and Handling) Project on the suit property i.e. Gat No. 219 of village Dandeadam4. Decree be drawn accordingly7. Feeling aggrieved, the appellant carried the matter by way of a Second Appeal before the High Court. The High Court after adverting to the findings and conclusions recorded by the first appellate Court, opined that the same did not warrant any interference, not being perverse and being based on oral and documentary evidence. In its opinion, therefore, no substantial question of law arose for consideration. The High Court observed thus: -11. In my view, the defendant has failed to produce any competent witness before the learned trial judge to prove that if the project as proposed was allowed to be set up, it will not cause any health hazard or create any pollution problem and would not affect the villagers of the said village. In my view the appreciation of evidence by the appellate court is proper and does not warrant any interference12. The finding of facts rendered by the appellate court are not perverse and are based on the oral and documentary evidence led by both parties and cannot be interfered with by this court in the second appeal under section 100 of the Code of Civil Procedure, 1908. There is no substantial question of law having arisen in this second appeal13. Second appeal is devoid of merits and is accordingly dismissed. No order as to costs8. Aggrieved, the appellant has filed the present appeal by special leave.

Reasoning:
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.