RATNAGIRI NAGAR PARISHAD versus GANGARAM NARAYAN AMBEKAR & ORS.
[2020] 6 S.C.R. 303, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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RATNAGIRI NAGAR PARISHAD
v.
GANGARAM NARAYAN AMBEKAR & ORS.
(Civil Appeal No. 2412 of 2020)
MAY 06, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
National Green Tribunal Act, 2010:
s.29 – Bar of jurisdiction of civil court – To cases relating to
environment – Held: After the establishment of the Tribunal under
the Act, civil court is not competent to entertain a suit relating to
environmental issues, in view of s. 29 and the dictum in *Bhopal Gas
Case – Such cause/ action ought to be transferred to the Tribunal
for adjudication.
Specific Relief Act, 1963:
s.41(f) – Injunction – Refusal of – Held: In view of s. 41(f),
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
– In the present case, the civil court was moved challenging the
Project when the Project was at nascent stage.
s. 41(h) – Injunction – Refusal of – Held: When equally
efficacious relief can be obtained by any other usual mode of
proceeding, an injunction cannot be granted – In the present case,
the cause of the plaintiffs could have been addressed to the competent
authorities concerned with the Project.
Relief:
Permanent injunction – Suit for permanent injunction –
Against State authorities – Seeking restraining them from starting
solid waste disposal project – Held: The plaintiff did not challenge
any of the decisions of the competent authority taken with regard to
the Project
nor any declaratory relief was sought – Relief of
permanent injunction simpliciter was not enough – Suit should have
been rejected at the threshold – Injunction.
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Evidence:
Burden of proof – to prove actionable nuisance – Held: Initial
burden of proof to substantiate the cause of actionable nuisance is
on the plaintiff – Weakness in the defence cannot be the basis to
grant relief to the plaintiff and to shift burden on the defendants.
Allowing the appeal, the Court
HELD: 1.1 The present suit was filed prior to 2.6.2010
and 18.10.2010 i.e. the dates when the National Green Tribunal
Act, 2010 came into force and the date of establishment of National
Green Tribunal (NGT) respectively. However, it was pending
before the civil court even after the establishment of the Tribunal.
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 the *Bhopal Gas case, 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 case. [Para 13][322-B-F]
*Bhopal Gas Peedith Mahila Udyog Sangathan & Ors.
v. Union of India & Ors. (2012) 8 SCC 326 : [2012] 12
SCR 947 – relied on.
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1.2 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 the present 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 nullity. [Para 
13]
[322-F-H]
2. The plaint as filed by 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 alone.
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 simpliciter. [Paras 14 and 15][323-A-C; 326-G]
Board of Trustees of Port of Kandla v. Hargovind Jasraj
& Anr. (2013) 3 SCC 182 : [2013] 1 SCR 589; Anathula
Sudhakar v. P. Buchi Reddy (D) by LRs. & Ors. (2008)
4 SCC 594 : [2008] 5 SCR 331 – relied on.
RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN
AMBEKAR & ORS.
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3.1 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.
Further, Section 41(f) of the Specific Relief Act, 1963 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. [Paras 17 and 18][329-G-H; 330-A-B]
3.2 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 Court could not
have answered the matter in issue on the basis of assumptions
and conjectures, much less unsubstantiated claim of the plaintiffs.
[Para 18][330-C-F]
4. 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
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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 plaintiffs. [Para 16][327-A-C]
Kuldip Singh v. Subhash Chander Jain & Ors. (2000)
4 SCC 50 : [2000] 2 SCR 639 – relied on.
5. The civil suit, as filed by respondent Nos. 1 to 19
(plaintiffs) ought to have been dismissed, as was rightly done by
the trial Court. Indeed, the dismissal of the suit would not come
in the way of the plaintiffs or any other person affected by the
proposed Project to make representation to the appropriate
authority, considering the proposal for grant of statutory
permissions under the concerned environment laws, and if that
decision is not acceptable, to carry the matter further in appeal
before the NGT or any other forum, as may be permissible by
law. [Para 19][330-G-H]
Case Law Reference
[2012] 12 SCR 947
relied on
Para 12
[2013] 1 SCR 589
relied on
Para 14
[2008] 5 SCR 331
relied on
Para 14
[2000] 2 SCR 639
relied on
Para 17
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2412
of 2020.
From the Judgment and Order dated 29.08.2016 of the High Court
of Judicature at Bombay in Second Appeal No. 771 of 2015.
Somiran Sharma, Rakesh Bhatkal, Advs. for the Appellant.
Nachiketa Joshi, Sandeep Deshmukh, Ms. Sucheta Joshi,
Ms. Himadri Haksar, Vipul Tiwari, Sachin Patil, Rahul Chitnis, Aaditya
Pandey, Advs. for the Respondents.
RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN
AMBEKAR & ORS.
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The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. Leave granted.
2. This appeal emanates from the judgment and order dated
29.8.2016 passed by the High Court of Judicature at Bombay1 in Second
Appeal No. 771/2015, whereby the judgment and decree dated 11.2.2015
passed by the District Judge, Ratnagiri2 in Regular Civil Appeal No.
34/2011 came to be affirmed, as a result of which the suit filed by the
respondent Nos. 1 to 19 (original plaintiffs) in the Court of Civil Judge,
Senior Division, Ratnagiri3 being RCS No. 25/2005 for permanent
injunction against the appellant and respondent No. 20 (State of
Maharashtra), restraining them from starting the Solid Waste Disposal
Project4 at the suit property, has been decreed. In other words, the trial
Court had dismissed the suit, but the first appellate Court allowed
(decreed) the same, which decision has been upheld by the High Court
in the Second Appeal.
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.5, 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
1 For short, “the High Court”
2 For short, “the first appellate Court”
3 For short, “the trial Court”
4 For short, “the Project”
5 For short, “the suit land” or “the suit property”
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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 Ratnagiri.
4. 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, 19866, which had
6 For short, “the 1986 Act”
RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN
AMBEKAR & ORS. [A. M. KHANWILKAR, J.]
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already come into force including the Municipal Solid Wastes
(Management and Handling) Rules, 20007. 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
7 For short, “the 2000 Rules”
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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 costs.
5. On the basis of rival stand, the trial Court framed six issues for
determination as follows: -
Issues
1. Whether the Plaintiffs have established that the disputed Solid Waste 
Disposal and Management project is harmful to the health of the citizens 
of the Panchkrosh? 
2. Whether the Plaintiffs have established that the suit property is not 
convenient for the Solid Waste Disposal and Management Project? 
3. Whether the Plaintiffs have established that objections and obstructions 
have been caused in his legal rights? 
4.Whether the Plaintiffs are entitled to seek relief in the Civil Court?
5. Whether the Plaintiffs are entitled to get the Permanent injunction 
Order? 
6. What Order and Decree?
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: -
RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN
AMBEKAR & ORS. [A. M. KHANWILKAR, J.]
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“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 injunction.
11. 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 R
1. Suit is being dismissed with costs.
2. Decree may be made accordingly.”
6. 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: -
Points
1. Whether the suit solid waste and Management Project is injurious to the 
health of villagers in vicinity as alleged? 
2. Whether the suit land is convenient and suitable for suit solid waste and 
management project? 
3. Whether there is an obstruction and interference in the lawful rights of 
plaintiffs? 
4. Whether the plaintiffs are entitled to claim relief before Civil Court? 
5.Whether plaintiffs are entitled to get decree of perpetual injunction? 
6.Whether judgment and decree of Ld. Trial Court requires interference? 
7. What order and decree?
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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
defendant’s 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 project.”
RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN
AMBEKAR & ORS. [A. M. KHANWILKAR, J.]
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The 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 reason.
32. 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
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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 pollution.
33. 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
interest.”
34. 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 one.
35. 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
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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
negative.”
On 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 R
1. The appeal is allowed with costs.
2. The judgment and decree passed by Ld. Trial Court dated
31.01.2011 is hereby set aside.
3. 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
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(Management and Handling) Project on the suit property i.e.
Gat No. 219 of village Dandeadam.
4. Decree be drawn accordingly.”
7. 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
interference.
12. 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 appeal.
13. Second appeal is devoid of merits and is accordingly dismissed.
No order as to costs.”
8. Aggrieved, the appellant has filed the present appeal by
special
leave. The thrust of the grievance of the appellant is that the first appellate
Court and the High Court committed manifest error in entertaining the
claim of the plaintiffs (respondent Nos. 1 to 19), which was not
substantiated by the plaintiffs themselves. The plaintiffs had failed to
discharge the onus. They had failed to establish jurisdictional facts
regarding actionable nuisance and moreso their suit was founded on
mere apprehensions on the basis of their understanding of the situation
of the possibility of nuisance or future nuisance. It was a quia timet
action for passing a preventive and precautionary permanent injunction
against the authorities. Significantly, no declaratory relief was sought
and the suit was only to grant simpliciter permanent injunction, which
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cannot be countenanced. It was a speculative suit and the plaintiffs having
failed to discharge their initial burden of proof, no relief could be granted.
The Project has been conceived after due deliberations by the competent
authorities and on the basis of opinion given by the experts in that regard.
Further, the Project will be fully compliant with all stipulations for
preserving environment and obviating even the slightest possibility of
causing pollution in the neighbourhood. The land has been identified as
an ideal land for the proposed Project by the experts and the State
Government had also accorded approval by allotting the same to the
appellant for the stated purpose. The approach of the first appellate
Court is completely unacceptable, as it has failed to first examine the
adequacy of the evidence given by the plaintiffs and to ascertain whether
the plaintiffs had discharged their initial burden of proof at all. However,
the first appellate Court chose to first examine the evidence of the
defendants (appellant and respondent No. 20), that too selectively, and
misread the same out of context to form its opinion and also took judicial
notice of irrelevant facts - which is nothing short of being replete with
conjectures and surmises. The High Court fell in error in not entertaining
the second appeal despite such manifest and cardinal infirmities committed
by the first appellate Court.
9. The respondent No. 20
– State of Maharashtra has supported
this appeal. It is urged by the State that the subject suit was completely
premature, as only site for the Project is identified. The suit is based on
speculations and misplaced assumptions that if the Project is installed at
the identified location, it would discharge waste and permit flow of polluted
water directly into the river. There is no actual basis for such assumption.
It is urged that the civil/trial Court could not have granted injunction not
only on account of Section 41(f) of the Specific Relief Act, 19638, which
predicates that the Court shall not grant injunction to prevent, on the
ground of nuisance, an act of which it is not reasonably clear that it will
be a nuisance, but also on account of Section 41(h), which envisages
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. It is urged that the plaintiffs could assail
the decision(s) of the appropriate authority of allotment of land in question
for the stated purpose, and setting up of the Project which would be
implemented after due permissions and clearances, if granted by the
8 For short, “the 1963 Act”
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competent authorities under the concerned environment law. At the stage
of consideration of such proposal, the person(s) likely to be affected by
the Project could make representation to the concerned authority, and if
the decision of the authority is adverse, can invoke remedy of appeal
before the National Green Tribunal9 under the National Green Tribunal
Act, 201010. In that, the Tribunal (NGT) is established to deal exclusively
concerning the subject of environmental protection and conservation of
forests and other natural resources and there is express bar on the
jurisdiction of the Civil Court, much less to grant any injunction or deal
with environmental issues in terms of Section 29 of the 2010 Act. It is
urged that after coming into force of the 2010 Act, jurisdiction of civil
Court is barred and for that reason, the decree passed by the first appellate
Court and confirmed by the High Court is not sustainable in the eyes of
law. It is urged that there is no other suitable site for setting up of the
Project; and the decision regarding suitability of the subject land has
been taken by the Municipal Solid Waste Committee being the expert
body in that regard. Even that decision has not been assailed nor the
concerned authorities including the Pollution Control Board have been
made party to the suit. It is urged that the site has a separate approach
road available to transport the solid waste and the assertion made by the
plaintiffs to the contrary is
mischievous and false. The State has also
urged to allow this appeal and to set aside the decree passed by the first
appellate Court, as confirmed by the High Court vide impugned judgment.
10. Per contra, the respondent Nos. 1 to 19 (original plaintiffs)
have reiterated the grounds which had commended to the first appellate
Court and the High Court to decree the suit and issue mandatory injunction
against the authorities concerned. It is urged that setting up of the Project
at the stated location would inevitably entail environment issues in the
area and pollute the river due to dumping of waste on the site. It is urged
that when the suit was filed, the civil Court was competent to adjudicate
the cause of action and grant relief of mandatory injunction as prayed by
the plaintiffs. As a result, the competence of the civil Court was never
questioned by the defendants. Further, reliance is placed on the Affidavit
in Compliance, which clearly indicates that the Ratnagiri Airport is located
within 6 kilometres from the disputed land and the said Airport has now
been declared as Naval base. The subject land where the Project is
proposed to be established is on the Northern side of the Naval base and
9 For short, “the NGT”
10 For short, “the 2010 Act”
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Ratnagiri town is on the Southern side. Thus, as per the applicable rules
there is express bar for setting up of Solid Waste Disposal Project (the
Project) at the proposed location. Moreover, because of the peculiar
topography, the waste water will flow towards the river in the
neighbourhood and would be a serious health hazard for population of
around 1 lakh in Ratnagiri. It is urged that the apprehension of the plaintiffs
of future mischief was not groundless but is based on strong foundation
that the site is on a slope and will create imminent toxic problem in the
area. In substance, the respondent Nos. 1 to 19 (plaintiffs) have adopted
the reasons which had weighed with the first appellate Court and the
High Court in second appeal and would urge that this appeal be dismissed
in light of the finding of fact so recorded by the said Courts.
11. We have heard Mr. Rakesh Bhatkal and Mr. Somiran Sharma,
learned counsel for the appellant, Mr. Sandeep Deshmukh and
Mr. Nachiketa Joshi, learned counsel for the respondent Nos. 1 to 19
and Mr. Sachin Patil and Mr. Rahul Chitnis, learned counsel for the
State of Maharashtra (respondent No. 20).
12. The fundamental question for our consideration is the effect
of enactment of the 2010 Act. 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 Tribunal. Section
14 deals with the jurisdiction of the Tribunal (NGT) over all civil cases
where a substantial question relating to environment (including
enforcement of any legal right relating to environment) is involved and
such question arises out of the implementation of the enactments specified
in Schedule I. Section 20 predicates that the Tribunal (NGT) shall, while
passing any order or decision or award, apply the principles of sustainable
development, the precautionary principle and the polluter pays principle.
Section 29 of the 2010 Act is of some significance. It is a provision
regarding bar of jurisdiction of civil Court. Section 29 reads thus:-
“29. (1) With effect from the date of establishment of the Tribunal
under this Act, no civil court shall have jurisdiction to entertain
any appeal in respect of any matter, which the Tribunal is
empowered to determine under its appellate jurisdiction.
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(2) No civil court shall have jurisdiction to settle dispute or entertain
any question relating to any claim for granting any relief or
compensation or restitution of property damaged or environment
damaged which may be adjudicated upon by the Tribunal, and no
injunction in respect of any action taken or to be taken by or
before the Tribunal in respect of the settlement of such dispute or
any such claim for granting any relief or compensation or restitution
of property damaged or environment damaged shall be granted
by the civil court.”
It will be now useful to advert to the exposition of a three-Judge
Bench of this Court in Bhopal Gas Peedith Mahila Udyog Sangathan
& Ors. vs. Union of India & Ors.11. In paragraphs 40 and 41 of the
reported decision, the Court held as under: -
“40. Keeping in view the provisions and scheme of the National
Green Tribunal Act, 2010 (for short “the NGT Act”) particularly
Sections 14, 29, 30 and 38(5), it can safely be concluded that the
environmental issues and matters covered under the NGT Act,
Schedule I should be instituted and litigated before the National
Green Tribunal (for short “NGT”). Such approach may be
necessary to avoid likelihood of conflict of orders between the
High Courts and NGT. Thus, in unambiguous terms, we direct
that all the matters instituted after coming into force of the NGT
Act and which are covered under the provisions of the NGT Act
and/or in Schedule I to the NGT Act shall stand transferred and
can be instituted only before NGT. This will help in rendering
expeditious and specialised justice in the field of environment to
all concerned.
41. We find it imperative to place on record a caution for
consideration of the courts of competent jurisdiction that
the cases filed and pending prior to coming into force of
the NGT Act, involving questions of environmental laws
and/or relating to any of the seven statutes specified in
Schedule I of the NGT Act, should also be dealt with by the
specialised tribunal, that is, NGT, created under the
provisions of the NGT Act. The courts may be well advised
to direct transfer of such cases to NGT in its discretion, as
it will be in the fitness of administration of justice.”
(emphasis supplied)
11 (2012) 8 SCC 326
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13. The question is whether the suit as filed in the year 2005
would be affected by the coming into force of the 2010 Act with effect
from 2.6.2010 and in particular consequent to establishment of the
Tribunal (NGT) on 18.10.2010. Indeed, 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
nullity.
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14. 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 alone. We may usefully advert to
the exposition of this Court in Board of Trustees of Port of Kandla vs.
Hargovind Jasraj & Anr.12. In paragraphs 26 to 31, the Court observed
thus: -
“26. Mr Ahmadi next argued that the termination of the lease
being illegal and non est in law, the respondent-plaintiffs could
ignore the same, and so long as they or any one of them remained
in possession, a decree for injunction restraining the Port Trust
from interfering with their possession could be passed by the court
competent to do so. We are not impressed by that submission.
27. The termination of the lease deed was by an order which the
plaintiffs ought to get rid of by having the same set aside, or declared
invalid for whatever reasons, it may be permissible to do so. No
order bears a label of its being valid or invalid on its forehead.
Anyone affected by any such order ought to seek redress against
the same within the period permissible for doing so. We may in
this regard refer to the following oft-quoted passage
in Smith v. East Elloe Rural District Council (1956 AC 736).
The following are the observations regarding the necessity of
recourse to the Court for getting the invalidity of an order
established:
“… An order, even if not made in good faith, is still an act
capable of legal consequences. It bears no brand of invalidity
on its forehead. Unless the necessary proceedings are taken
12 (2013) 3 SCC 182
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at law to establish the cause of invalidity and to get it quashed
or otherwise upset, it will remain as effective for its ostensible
purpose as the most impeccable of orders.’ [Smith case (1956
AC 736) pp. 769-70]
(emphasis supplied)
This must be equally true even where the brand of invalidity is
plainly visible: for there also the order can effectively be resisted
in law only by obtaining the decision of the court. The necessity
of recourse to the court has been pointed put repeatedly in the
House of Lords and Privy Council without distinction between
patent and latent defects.” [Ed.: Wade and Forsyth
in Administrative Law, 7th Edn., 1994.]
28. The above case was approved by this Court in Krishnadevi
Malchand Kamathia v. Bombay Environmental Action
Group [(2011) 3 SCC 363], wherein this Court observed: (SCC
pp. 369-70, para 19)
“19. Thus, from the above it emerges that even if the order/
notification is void/voidable, the party aggrieved by the same
cannot decide that the said order/notification is not binding upon
it. It has to approach the court for seeking such declaration.
The order may be hypothetically a nullity and even if its invalidity
is challenged before the court in a given circumstance, the
court may refuse to quash the same on various grounds including
the standing of the petitioner or on the ground of delay or on
the doctrine of waiver or any other legal reason. The order
may be void for one purpose or
for one person, it may not be
so for another purpose or another person.”
29. To the same effect is the decision of this Court in Pune
Municipal Corpn. v. State of Maharashtra [(2007) 5 SCC 211]
wherein this Court discussed the need for determination of
invalidity of an order for public purposes: (SCC pp. 225-26, paras
36 & 38-39)
“36. It is well settled that no order can be ignored altogether
unless a finding is recorded that it was illegal, void or not in
consonance with law. As Prof. Wade states:
‘The principle must be equally true even where the “brand
of invalidity” is plainly visible: for there also the order can
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effectively be resisted in law only by obtaining the decision
of the court’ [ H.W.R. Wade, Administrative Law (6th Edn.,
Clarendon Press, Oxford 1988) 352].
He further states:
‘The truth of the matter is that the court will invalidate an
order only if the right remedy is sought by the right person
in the right proceedings and circumstances. The order may
be hypothetically a nullity, but the court may refuse to quash
it because of the plaintiff’s lack of standing, because he
does not deserve a discretionary remedy, because he has
waived his rights, or for some other legal reason. In any
such case the “void” order remains effective and is, in reality,
valid. It follows that an order may be void for one purpose
and valid for another; and that it may be void against one
person but valid against another.’ [H.W.R. Wade,
Administrative Law (6th Edn., Clarendon Press, Oxford
1988) 352-53]
  ***
38. A similar question came up for consideration before this
Court in State of Punjab v. Gurdev Singh [(1991) 4 SCC 1].
…
39. Setting aside the decree passed by all the courts and
referring to several cases, this Court held that if the party
aggrieved by invalidity of the order intends to approach the
court for declaration that the order against him was inoperative,
he must come before the court within the period prescribed by
limitation. ‘If the statutory time of limitation expires, the court
cannot give the declaration sought for.’”
(emphasis supplied)
30. Reference may
also be made to the decisions of this Court
in R. Thiruvirkolam v. Presiding Officer [(1997) 1 SCC 9]
, State of Kerala v. M.K. Kunhikannan Nambiar Manjeri
Manikoth [(1996) 1 SCC 435] and Tayabbhai M. Bagasarwalla
v. Hind Rubber Industries (P) Ltd. [(1997) 3 SCC 443], where
this Court has held that an order will remain effective and lead to
legal consequences unless the same is declared to be invalid by a
competent court.
RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN
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31. It is true that in some of the above cases, this Court was
dealing with proceedings arising under Article 226 of the
Constitution, exercise of powers whereunder is discretionary but
then grant of declaratory relief under the Specific Relief Act is
also discretionary in nature. A civil court can and may in
appropriate cases refuse a declaratory decree for good and
valid reasons which dissuade the court from exercising its
discretionary jurisdiction. Merely because the suit is within
time is no reason for the court to grant a declaration. Suffice
it to say that filing of a suit for declaration was in the
circumstances essential for the plaintiffs. That is precisely
why the plaintiffs brought a suit no matter beyond the period of
limitation prescribed for the purpose. Such a suit was neither
unnecessary nor a futility for the plaintiff’s right to remain in
possession depended upon whether the lease was subsisting or
stood terminated. It is not, therefore, possible to fall back upon
the possessory rights claimed by the plaintiffs over the leased
area to bring the suit within time especially when we have, while
dealing with the question of possession, held that possession also
was taken over pursuant to the order of termination of the lease
in question.”
(emphasis supplied)
We may also refer to Anathula Sudhakar vs. P. Buchi Reddy
(D) by LRs. & Ors.13, wherein this Court opined that where the
averments regarding title
are mentioned in the plaint but if the matter
involves complicated question of fact and law relating to title, the Court
will relegate the parties to the remedy of a comprehensive suit for
declaration of title, instead of deciding the issue in a suit for mere
injunction.
15. 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 simpliciter.
13 (2008) 4 SCC 594
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16. 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 plaintiffs.
17. 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.14. In paragraphs 6 to 8 and 10 of the reported decision, the
Court observed thus: -
“6. A quia timet action is a bill in equity. It is an action preventive
in nature and a specie of precautionary justice intended to prevent
apprehended wrong
or anticipated mischief and not to undo a
wrong or mischief when it has already been done. In such an
action the court, if convinced, may interfere by appointment of
receiver or by directing security to be furnished or by issuing an
injunction or any other remedial process. In Fletcher v. Bealey
[(1885) 28 Ch D 688], Mr Justice Pearson explained the law as to
actions quia timet as follows:
“There are at least two necessary ingredients for a quia
timet action. There must, if no actual damage is proved,
be proof of imminent danger, and there must also be proof
that the apprehended damage will, if it comes, be very
substantial. I should almost say it must be proved that it
will be irreparable, because, if the danger is not proved
to be so imminent that no one can doubt that, if the
remedy is delayed the damage will be suffered, I think it
must be shown that, if the damage does occur at any
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time, it will come in such a way and under such
circumstances that it will be impossible for the plaintiff
to protect himself against it if relief is denied to him in
a quia timet action”.
7. Kerr on Injunctions (6th Edn., 1999) states the law on
“threatened injury” as under:
“The court will not in general interfere until an actual nuisance
has been committed; but it may, by virtue of its jurisdiction to
restrain acts which, when completed, will result in a ground of
action, interfere before any actual nuisance has been committed,
where it is satisfied that the act complained of will inevitably
result in a nuisance. The 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 children’s school or
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opening a shop dealing with highly inflammable products in the
midst of a residential locality.
xxx
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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
RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN
AMBEKAR & ORS. [A. M. KHANWILKAR, J.]
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SUPREME COURT REPORTS
[2020] 6 S.C.R.
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.
19. Taking any view of the matter, the civil suit, as filed by the
respondent Nos. 1 to 19 (plaintiffs) ought to have been dismissed, as
was rightly done by the trial Court. Indeed, the dismissal of the suit
would not come in the way of the plaintiffs or any other person affected
by the proposed Project to make representation to the appropriate
authority, considering the proposal for grant of statutory permissions under
the concerned environment laws, and if that decision is not acceptable,
to carry the matter further in appeal before the NGT or any other forum,
as may be permissible by law. We leave all questions open in that regard.
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20. Accordingly, this appeal succeeds and the judgment and decree
passed by the first appellate Court and by the High Court, is set aside.
Resultantly, the civil suit filed by the plaintiffs (respondents Nos. 1 to 19)
stands dismissed with observations made hitherto. There shall be no
order as to costs. Pending interlocutory applications, if any, shall stand
disposed of.
Kalpana K. Tripathy
Appeal allowed.
RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN
AMBEKAR & ORS. [A. M. KHANWILKAR, J.]