RATNAGIRI NAGAR PARISHAD versus GANGARAM NARAYAN AMBEKAR & ORS. on 6 May 2020

[2020] 6 S.C.R. 303

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 toenvironment – Held: After the establishment of the Tribunal underthe Act, civil court is not competent to entertain a suit relating toenvironmental issues, in view of s. 29 and the dictum in *Bhopal GasCase – Such cause/ action ought to be transferred to the Tribunalfor 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 theProject when the Project was at nascent stage.

s. 41(h) – Injunction – Refusal of – Held: When equallyefficacious relief can be obtained by any other usual mode ofproceeding, an injunction cannot be granted – In the present case,the cause of the plaintiffs could have been addressed to the competentauthorities concerned with the Project.

Relief:

Permanent injunction – Suit for permanent injunction –Against State authorities – Seeking restraining them from startingsolid waste disposal project – Held: The plaintiff did not challengeany of the decisions of the competent authority taken with regard tothe Project nor any declaratory relief was sought – Relief ofpermanent injunction simpliciter was not enough – Suit should havebeen rejected at the threshold – Injunction.

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AEvidence:

Burden of proof – to prove actionable nuisance – Held: Initialburden of proof to substantiate the cause of actionable nuisance ison the plaintiff – Weakness in the defence cannot be the basis togrant relief to the plaintiff and to shift burden on the defendants.

B

Allowing the appeal, the Court

HELD: 1.1 The present suit was filed prior to 2.6.2010and 18.10.2010 i.e. the dates when the National Green TribunalAct, 2010 came into force and the date of establishment of NationalGreen Tribunal (NGT) respectively. However, it was pendingCbefore the civil court even after the establishment of the Tribunal.The trial court has not even adverted to the express provision inthe form of Section 29 regarding bar of jurisdiction of the civilcourt. On perusal of the tenor of the plaint and the subject matterof the present suit, it is indisputable that the case plainly involvedDsubstantial question relating to environment includingenforcement of legal right relating to environment. That causewas the foundation for the relief of permanent injunction soughtby the plaintiffs. By virtue of Section 29 and in particular the dictumin the *Bhopal Gas case, the civil court ought not to havecontinued with the suit. It is a different matter that the trial courtEchose to dismiss the suit on the finding that the plaintiffs hadfailed to substantiate the case set up by them in the plaint. Oncethe suit was barred by law, the civil court could not have proceededwith the suit and at best, the parties could have been relegatedbefore the NGT, the special forum created by the 2010 Act. Indeed,Fthe trial court did not have the benefit of the reported decision ofthis court. For, the said decision was rendered on 9.8.2012.However, it is intriguing that even the first appellate court andthe High Court did not think it necessary to advert to the effectof Section 29 of the 2010 Act and in particular, the decision ofthis Court in *Bhopal Gas case. [Para 13][322-B-F]G

*Bhopal Gas Peedith Mahila Udyog Sangathan & Ors.v. Union of India & Ors. (2012) 8 SCC 326 : [2012] 12SCR 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 theaction (in the present case, first appeal before the first appellateCourt and the second appeal before the High Court beingcontinuation of the suit) concerning the substantial questionrelating to environment including enforcement of legal rightrelating to environment. In any case, there remained no tittle ofdoubt 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 conclusionsrendered in favour of the plaintiffs, in particular by the firstappellate Court and the High Court, will be of no avail and in lawstand effaced being without jurisdiction and nullity. [Para 13][322-F-H]

2. The plaint as filed by respondent Nos. 1 to 19 also suffersfrom another fundamental deficiency. Indeed, it is a cleverlydrafted plaint, so as to give an impression that the competentauthority had not taken any decision in exercise of statutorypowers until the filing of the suit. However, in the writtenstatement, clear assertion has been made by the defendants(appellant and respondent No. 20) that the decision to allot suitland to the appellant and for setting up the Project was takenafter due deliberation and consultation with the expert Committeeincluding in exercise of statutory powers of the concernedauthority in that regard. None of these decisions of the competentauthority has been assailed by the plaintiffs nor any declaratoryrelief sought in that regard. In such a case, it would not be enoughto ask for permanent injunction simpliciter and the suit so filedought to have been rejected at the threshold on that count alone.Even for this reason, the decree passed by the first appellateCourt and confirmed by the High Court, cannot stand the test ofjudicial scrutiny. The Courts have clearly glossed over this crucialaspect, which disentitled the plaintiffs for relief of permanentinjunction 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; AnathulaSudhakar v. P. Buchi Reddy (D) by LRs. & Ors. (2008)4 SCC 594 : [2008] 5 SCR 331 – relied on.

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A3.1 The first appellate Court proceeded on a merepossibility of injury likely to be caused on account of setting up ofthe proposed Project. On the other hand, the defendants assertedthat the Project has been conceived and the suit land has beenidentified for that purpose. The Project is at a nascent stage forwhich permissions would be obtained from the concernedBauthorities under the environment laws before implementing thesame. At this initial stage itself, the civil court was moved by theplaintiffs on the basis of their understanding of the situation.Further, Section 41(f) of the Specific Relief Act, 1963 clearlymandates that an injunction cannot be granted to prevent, on theCground of nuisance, an act of which it is not reasonably clear thatit will be a nuisance. [Paras 17 and 18][329-G-H; 330-A-B]

3.2 Respondent No. 20 (State of Maharashtra) is right incontending that the plaintiffs would have equally efficacious reliefby resorting to other mode of proceedings. To wit, when theproposal regarding setting up of the Project is being finalisedDand permissions are granted by the competent authority underthe concerned statutory dispensation, at that time, the affectedparties would be free to make representation which can beconsidered by the competent authority appropriately. Hence, thecivil Court ought not to have granted injunction simpliciter alsoEbecause of the stipulation in Section 41(h) of the 1963 Act, whereinit is made amply clear that when equally efficacious relief cancertainly be obtained by any other usual mode of proceedingexcept in case of breach of trust, an injunction cannot be granted.The scheme of Section 41 of the 1963 Act predicates that thecivil Court must refuse to grant injunction in the situationsFreferred to therein vide clauses (a) to (j). The Court could nothave answered the matter in issue on the basis of assumptionsand conjectures, much less unsubstantiated claim of the plaintiffs.[Para 18][330-C-F]

4. It is manifest that the trial Court had opined that theGplaintiffs failed to substantiate the case set out in the plaintregarding the actionable nuisance. The trial Court justly analysedthe evidence of the plaintiffs in the first place to answer thecontroversy before it. The first appellate Court, however, afteradverting to the oral and documentary evidence produced by the H

parties, proceeded to first find fault with the evidence of thedefendants to answer the controversy in favour of the plaintiffs.The first appellate Court committed palpable error in not keepingin mind that the initial burden of proof was on the plaintiffs tosubstantiate their cause for actionable nuisance, which they hadfailed to discharge. In such a case, the weakness in the defencecannot be the basis to grant relief to the plaintiffs and to shift theburden on the defendants, as the case may be. Thus understood,the findings and conclusions reached by the first appellate Courtwill 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 bythe trial Court. Indeed, the dismissal of the suit would not comein the way of the plaintiffs or any other person affected by theproposed Project to make representation to the appropriateauthority, considering the proposal for grant of statutorypermissions under the concerned environment laws, and if thatdecision is not acceptable, to carry the matter further in appealbefore the NGT or any other forum, as may be permissible bylaw. [Para 19][330-G-H]

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2412of 2020.

From the Judgment and Order dated 29.08.2016 of the High Courtof 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, AadityaPandey, Advs. for the Respondents.

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AThe Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. Leave granted.

2. This appeal emanates from the judgment and order datedB29.8.2016 passed by the High Court of Judicature at Bombay[1] in SecondAppeal No. 771/2015, whereby the judgment and decree dated 11.2.2015passed by the District Judge, Ratnagiri[2] in Regular Civil Appeal No.34/2011 came to be affirmed, as a result of which the suit filed by therespondent Nos. 1 to 19 (original plaintiffs) in the Court of Civil Judge,Senior Division, Ratnagiri[3] being RCS No. 25/2005 for permanentCinjunction against the appellant and respondent No. 20 (State ofMaharashtra), restraining them from starting the Solid Waste DisposalProject[4] at the suit property, has been decreed. In other words, the trialCourt had dismissed the suit, but the first appellate Court allowed(decreed) the same, which decision has been upheld by the High CourtDin the Second Appeal.

3. Briefly stated, the respondent Nos. 1 to 19 filed the stated suiton 31.1.2005 in representative capacity being residents of different Wadasof the villages at Fansavle, Dandeadom, Mirjole, Majgaon and Kelye inDistrict Ratnagiri. The gravamen of the issues raised in the stated suitEwas that the appellant – Ratnagiri Nagar Parishad intends to set up aSolid Waste Disposal Project (the Project) in the suit property at villageDandeadom, Taluka and District Ratnagiri bearing Gat No. 219admeasuring 2H-46 Aars.[5], which land had been allotted to the appellantby the State Government. The suit land is located around 10 kms. awayfrom the limits of the Ratnagiri city at a hilly and sloppy area. The entireFarea is rocky and hard. The location selected for setting up the Projectwas wholly ill-advised, as it would entail in serious health problem forthe villagers in the locality and also inevitably pollute the river nearbyflowing from Kelye village through the villages Majgaon, Mhamurwadiupto Sakharat. Moreover, on this river, Sheel Dam is located on theGboundary of Fanasavle village, which provides water supply to Ratnagiricity. 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”

H5 For short, “the suit land” or “the suit property”

asserted that the entire Kokan area receives heavy rainfall betweenmonths of June and October and considering the direction of flow ofriver and other streams in the nearby area, there is imminent possibilityof causing severe water pollution due to the solid waste piled up on thesuit property. Initially, some other site was identified for setting up theProject, but due to political intervention, it has been shifted to the presentlocation, which is not at all ideal being a rocky hard and sloppy track.Other fallow lands are available in the Nagar Palika jurisdiction, whichare more suited for the intended Project spread over in several acresand are at the base of the Ratnadurg Fort. The authorities had in factcommenced the process of acquiring that land near Bhataye seashorewithin the limits of Fansop village, but for reasons best known to theauthorities, the idea to continue the Project at that location has beendisbanded. It is asserted that there is no existing public road access tothe suit land and the trucks carrying the solid waste will have to beprovided access through private lands in the neighbourhood includingthat of some of the plaintiffs. Furthermore, the appellant had not takenany permission from the competent authority (the Health Officer of JillaParishad/Health Department). In substance, the grievance is substantiallyabout possible environmental fallout due to setting up of the Project inthe suit property and in particular, to the nearby river and dam, which isthe source of water supply to habitants of District Ratnagiri.

4. The appellant filed written statement and refuted every assertionin the plaint about the possible environmental fallout due to setting up ofthe Project at the stated location. The appellant asserted that the landbelonged to the State Government and only after due consultation anddeliberations with all concerned, it has been allotted to the appellant forsetting up of the Project thereat. Further, the necessity of setting upsuch a project need not be underscored. It is a statutory obligation of theappellant and also necessitated on account of directions issued by theCourt in public interest litigation in that regard. The appellant is obligedto collect solid waste on daily basis from the localities within the District(Ratnagiri) and provide for mechanism to dispose of the same as per thestandard protocol. Considering the ill-effects of process of collectionand disposal of such waste, an expert opinion/report was submitted tothe Government. It is stated that the Project would be set up strictly inconformity with the Environment (Protection) Act, 1986[6], which had 6 For short, “the 1986 Act”

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6 For short, “the 1986 Act”

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Aalready come into force including the Municipal Solid Wastes(Management and Handling) Rules, 2000[7]. These Rules have beenformulated on the basis of directions given by this Court. The appellantdenied that the Project would be a cause for pollution, as all precautionswould be taken and necessary environment clearances will be obtainedfrom the competent authority. It is stated that initially the authorities hadBselected three places for setting up the Project, but it was realised thatthe other two locations would be non-compliant with the prescribedconditions under the concerned environment laws. As a matter of fact,the State Government had established a High-Level Committee to makerecommendations about the location of the Project, on 5.12.2003 consistingCof (1) Regional Officer, Pollution Control, (2) Sub-Divisional ForestOfficer, (3) Jilla Parishad Geologist, Ground Water Survey andDevelopment Machinery, (iv) Town Planner and (v) District HealthOfficer. The said Committee, after due deliberations identified the suitproperty as ideal for setting up of the proposed Project, which indeedwould be compliant with all environment regulations. The appellant,Dtherefore, stoutly denied the assertion in the plaint that the decision wastaken by the appellant unilaterally and without following due process.The appellant also denied the assertion about likelihood of polluting theDam water or river flowing from village Kelye through other villagesupto the sea. The appellant denied the factual assertions in the plaint andEcalled upon the plaintiffs (respondent Nos. 1 to 19) to substantiate therelevant facts stated therein. The appellant had specifically denied thatthe 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 wetor polluted water will be allowed to flow from the suit land. Theseprecautions will be taken without exception and stringent conditions willFbe prescribed as is evident from the official records. In other words, theplaintiffs have made irresponsible and frivolous statements in the plaintwithout any basis to substantiate the same. According to the appellant,the suit was politically motivated. The appellant specifically assertedthat the Project site was yet to be finalised by the appellant and wouldGabide strictly by the recommendations of the experts providing forstringent conditions. The appellant asserted that because of the pendencyof the suit proceedings, necessary permissions and clearances from thecompetent authority under the environment laws could not be pursuedfurther. It is thus stated that the Project would be set up only after such H7 For short, “the 2000 Rules”

permissions are granted and would be implemented under the strictsupervision of the concerned authorities. The appellant also stated thatthe suit was not maintainable and ought to be dismissed with costs.

5. On the basis of rival stand, the trial Court framed six issues fordetermination as follows: - Issues1. 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 oftheir stand. The trial Court, after analysing the evidence adduced by theplaintiffs (respondent Nos. 1 to 19), noted that the assertions made bythe plaintiffs were founded on their understanding of the matter and noproof to support that claim was forthcoming. The trial Court noted theadmission given by the plaintiffs’ witnesses that no proof has beenproduced by them to establish the fact of existence of public settlementsnear the suit property. Also, that they had no knowledge or expertiseabout the solid waste Project nor they collected any information fromany expert before asserting that the said Project would not be viable andentail in causing pollution to the Dam water and river as such. They alsoadmitted that the case set out by them was on the basis of their personalknowledge and there was no scientific basis. In the cross-examination,they had admitted that before taking possession of the disputed land forthe proposed Project, the Project Officer of the Nagar Parishad andother Officers had held discussion with the Dandeadom Sarpanch andmembers. These admissions clearly belied the case made out by theplaintiffs that the appellant had decided to set up the proposed Projectunilaterally and without any consultation. The trial Court, therefore,proceeded to dismiss the suit filed by the respondent Nos. 1 to 19 byconcluding thus: - A

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312SUPREME COURT REPORTS

A“15. In the present case, the Plaintiffs have not given the strongproof for establishing that there is residential colonies near theProposed project. In the same way, they have not established themanner in which water pollution will be caused due to the proposedproject. For the purpose of establishing that there will be waterpollution due to the proposed project, it was necessary for theBPlaintiffs to establish the so called Plan of the flow of Dandeadomriver. For the purpose of establishing that there will be waterpollution due to the project, it was necessary for the plaintiffs togive evidence of expert persons. The Plaintiffs have admitted intheir cross examination that they have taken personal informationCof the solid Waste Project. The allegations made in the suit by theplaintiff seems to be their personal opinion. In the same way, itbecomes clear that there is no scientific base to their opinion. Asthe Plaintiffs have established that there will be the alleged pollutionin future, the question of giving the permanent injunction does notarise. The plaintiffs have not established that their legal right hasDbeen neglected. The Plaintiffs have not given prima facie evidencefor giving the permanent injunction.

11. The answer of issues No. 1 to 4 is being given in the negativeand the Order is being made as under:

EO 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 to19/plaintiffs. The first appellate Court after adverting to the rivalFcontentions formulated following points for its consideration: - Points1. 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 thewitnesses examined by the plaintiffs and defendants (appellant andrespondent No. 20) and went on to opine as follows: - “28. After considering the oral evidence led by both the parties, itreveals that the oral evidence led by the plaintiff is moretrustworthy and credible than the evidence led by the defendants.Because during cross examination witnesses for plaintiffsremained stick up to their version narrated by them in theirexamination in chief, but, here, so far as regards evidence ofdefendant’s witnesses, their statement in examination in chief isdemolished by way of cross examination, as they have given abovenoted vital admissions. It reveals from oral evidence led by boththe parties that the suit property is situated on hilly area, which ishaving stony surface. It also reveals that the suit property is havingslope towards southern and western side. It also reveals thatDandeadam river is situated on the bottom of the slope. Thewitnesses for defendants itself also admitted that in Ratnagiri citythere is a collection of 15 to 16 trucks solid waste per day. If sucha huge wastage is going to be stored on the suit property, which ishaving slope towards river, then, definitely it will pollute river water.Because the plaintiffs have specifically pleaded and deposed thatin the Konkan Region there is rain fall of 120 to 130 inch per yearin rainy season. A judicial note can be taken of this fact that thereis heavy rain fall in Konkan region in every rainy season. If sucha huge wastage is going to be stored on the suit property, thendefinitely it will be flown into river because of slope and becauseof the heavy rain fall. If such a wastage will be flown into riverwater, because of its decomposition, it will be fermented and itwill definitely pollute the river water. Admittedly river water flowsfrom various villages and Dandeadam river joins with Sheel riverwithin vicinity of Fansavale village. Admittedly dam is constructedover Sheel river from which there is water supply to Ratnagiricity. 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 willresult ultimately causing danger to the life and health of citizensof Ratnagiri city and citizens of the vicinity. Therefore, the oralevidence of plaintiffs shows that the proposed project is dangerousfor the life and health of the citizens, so also the suit property isnot suitable and convenient for the proposed project.”

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AThe first appellate Court then adverted to the documentaryevidence on record and opined as follows: -

“31. It reveals from over all careful scrutiny of the documentaryevidence produced by both the parties that, the defendants arenot coming before the Court with clean hands. Because thedocumentary evidence produced on record by both the partiesclearly shows that previously S.No. 137/16 situated at villageKasop was acquired for the project of solid waste management,but, that project was cancelled and suddenly the defendantsacquired the suit property for the project, for which no reason isgiven by the defendants. The defendants have not given any reasonas to why they cancelled the project at village Kasop on S. No.137/16. Admittedly, the property bearing S. No. 137/16 is situatedat the distance of 3 to 4 kmtr. from Ratnagiri city, that too nearsea shore. Admittedly the suit property is situated at the distanceof 10 to 15 kmtr. from Ratnagiri city. Under such circumstancesgenuine question arises for what reasons the defendants cancelledtheir project on S.No. 137/16. To that effect it is the case of theplaintiffs that because of political pressure by the side of KohinoorHotel they cancelled the project. Considering entire evidencebefore the Court and considering facts and circumstances, I findsubstance in the submissions and evidence of plaintiffs to thateffect. Because, S. No. 137/16 at village Kasop was suitable andconvenient by all means and that too its compensation amount ofRs. 1,20,000/- was deposited by the defendant No. 1 under suchcircumstances, there was no reason for the defendants to cancelthat project. But here that has been done highhandedly withoutany plausible reason.

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32. The cross examination of defendant No. 1 shows that dailynear about 15 to 16 trucks solid waste is collected in the RatnagiriCity. Admittedly, the suit property is situated at 15 kmtr. fromRatnagiri city. As per the evidence of D.W. 1 near about 16 trucksare being used daily for the management of solid waste. If weconsider the expenses of shifting 16 trucks solid waste daily fromRatnagiri to suit property by trucks, then per year the defendantNo. 1 has to spend lacs [sic.] of rupees for payment of truckstransportation charges. This also shows that the suit property isnot suitable for solid waste management. Moreover, as per the G

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evidence of D.W. 1 that the vehicles used for transportation ofsolid waste are open. As per the Municipal Solid Waste(Management and Handling) Rule, 2000 (hereinafter called asthe Rule) clause 4 of Schedule 2 shows that, “Vehicles used fortransportation of wastage shall be covered. Wastage should notbe visible to public nor exposed to open environment preventingtheir scattering.” Therefore, this Rule shows that open vehiclescan not be used for transportation of solid waste, but, here as perthe admissions given by D.W. 2 open vehicles are being used. Ifsuch open vehicles carries solid waste upto the suit property, thenagain it will cause scattering of waste and it will cause pollution.

33. The plaintiffs have specifically proved that the suit property issituated in hilly area having sheer slope towards a river, which issituated at the bottom of the slope. In this respect, it is pertinent tonote here the provision of the Rules. The defendant No. 1 haveitself produced Municipal Solid Wastes (Management andHandling) Rules, 2000 at Exh. 125. After perusal of these Rules,it reveals that, certain guidelines in these Rules for selection of aproperty for such a Solid Wastes Project. Schedule 3 of theseRules deals with Site selection. Clause 8 of Schedule 3 showsthat, “the landfill site shall be away from water bodies.” Here it isnecessary to reproduce Clause 8 of Schedule 3 of ready reference.It is as under, “Schedule 3(8) – The Landfill site shall be away from habitationclusters, forest areas, water bodies, monuments, National Parks,Wetlands and places of important cultural, historical or religiousinterest.”

34. This clause 8 clearly indicates that, the Solid Waste Projectmust be away from water bodies and habitation clusters. But,here in the case at hand, the proposed project is situated near theriver. Admittedly, in rainy season the water will flow from theproject to the river and it will pollute the river water. Therefore,the proposed project is also against the Clause 8 of Schedule 3and hence, it is illegal one.

35. The sum and substance of above discussion is that, it is anadmitted position that S. No. 219 i.e. suit property is situated onhilly area having sheer slope towards river situated at its bottom.If such huge quantity of solid waste is being stored on the suit AB

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SUPREME COURT REPORTS

Aproperty, then in rainy season definitely it will decompose and itwill be fermented and it will flow into the river water, because ofwhich entire river water and dam water will be polluted. Admittedly,that Sheel dam water is being supplied to the citizens of Ratnagiricity 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. TheBdefendants have not produced on record any document, whichwill show that the Pollution Control Board and Bhujal SurveyOfficer has surveyed the suit property as convenient and suitablefor the project. No such clearance certificate about suit propertyis produced on record. So also the defendants have not producedCon record any document, which will show that they will filter thewater and supply it to the citizens. Therefore, if the water will beflown into river then definitely pollution will happen and it willcause danger to the life and health of the public. It is a constitutionright of every citizen to get unpolluted air, water and environment.Right to life is provided under Article 21 of the Constitution ofDIndia. Project are being made for the welfare of public and notfor causing danger to their health and life. For the reason statedabove, 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 waterEand environment. Under such circumstances, I find substances inthe submissions of Ld. Advocate for the plaintiff and I record myfindings to points No. 1 and 3 in the affirmative, point no. 2 in thenegative.”

On the basis of the aforesaid conclusions, the first appellate CourtFpassed the following order to decree the suit filed by respondent Nos. 1to 19: - “O R D E R

1. The appeal is allowed with costs.

G2. The judgment and decree passed by Ld. Trial Court dated31.01.2011 is hereby set aside.

3. the suit bearing Regular Civil Suit No. 25/2005 is decreed asunder:

(a) The defendants and their representative are herebyHperpetually prohibited from starting proposed Solid Waste (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 aSecond Appeal before the High Court. The High Court after advertingto the findings and conclusions recorded by the first appellate Court,opined that the same did not warrant any interference, not being perverseand being based on oral and documentary evidence. In its opinion,therefore, no substantial question of law arose for consideration. TheHigh Court observed thus: - “11. In my view, the defendant has failed to produce any competentwitness before the learned trial judge to prove that if the projectas proposed was allowed to be set up, it will not cause any healthhazard or create any pollution problem and would not affect thevillagers of the said village. In my view the appreciation of evidenceby the appellate court is proper and does not warrant anyinterference.

12. The finding of facts rendered by the appellate court are notperverse and are based on the oral and documentary evidenceled by both parties and cannot be interfered with by this court inthe second appeal under section 100 of the Code of CivilProcedure, 1908. There is no substantial question of law havingarisen 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 specialleave. The thrust of the grievance of the appellant is that the first appellateCourt and the High Court committed manifest error in entertaining theclaim of the plaintiffs (respondent Nos. 1 to 19), which was notsubstantiated by the plaintiffs themselves. The plaintiffs had failed todischarge the onus. They had failed to establish jurisdictional factsregarding actionable nuisance and moreso their suit was founded onmere apprehensions on the basis of their understanding of the situationof the possibility of nuisance or future nuisance. It was a quia timetaction for passing a preventive and precautionary permanent injunctionagainst the authorities. Significantly, no declaratory relief was soughtand the suit was only to grant simpliciter permanent injunction, which A

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Acannot be countenanced. It was a speculative suit and the plaintiffs havingfailed to discharge their initial burden of proof, no relief could be granted.The Project has been conceived after due deliberations by the competentauthorities and on the basis of opinion given by the experts in that regard.Further, the Project will be fully compliant with all stipulations forpreserving environment and obviating even the slightest possibility ofBcausing pollution in the neighbourhood. The land has been identified asan ideal land for the proposed Project by the experts and the StateGovernment had also accorded approval by allotting the same to theappellant for the stated purpose. The approach of the first appellateCourt is completely unacceptable, as it has failed to first examine theCadequacy of the evidence given by the plaintiffs and to ascertain whetherthe plaintiffs had discharged their initial burden of proof at all. However,the first appellate Court chose to first examine the evidence of thedefendants (appellant and respondent No. 20), that too selectively, andmisread the same out of context to form its opinion and also took judicialnotice of irrelevant facts - which is nothing short of being replete withDconjectures and surmises. The High Court fell in error in not entertainingthe second appeal despite such manifest and cardinal infirmities committedby the first appellate Court.

9. The respondent No. 20 – State of Maharashtra has supportedthis appeal. It is urged by the State that the subject suit was completelyEpremature, as only site for the Project is identified. The suit is based onspeculations and misplaced assumptions that if the Project is installed atthe identified location, it would discharge waste and permit flow of pollutedwater 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 notFonly on account of Section 41(f) of the Specific Relief Act, 1963[8], whichpredicates that the Court shall not grant injunction to prevent, on theground of nuisance, an act of which it is not reasonably clear that it willbe a nuisance, but also on account of Section 41(h), which envisagesthat when equally efficacious relief can certainly be obtained by any

other usual mode of proceeding except in case of breach of trust, anGinjunction cannot be granted. It is urged that the plaintiffs could assailthe decision(s) of the appropriate authority of allotment of land in questionfor the stated purpose, and setting up of the Project which would beimplemented after due permissions and clearances, if granted by the H8 For short, “the 1963 Act”

competent authorities under the concerned environment law. At the stageof consideration of such proposal, the person(s) likely to be affected bythe Project could make representation to the concerned authority, and ifthe decision of the authority is adverse, can invoke remedy of appealbefore the National Green Tribunal[9] under the National Green TribunalAct, 2010[10]. In that, the Tribunal (NGT) is established to deal exclusivelyconcerning the subject of environmental protection and conservation offorests and other natural resources and there is express bar on thejurisdiction of the Civil Court, much less to grant any injunction or dealwith environmental issues in terms of Section 29 of the 2010 Act. It isurged that after coming into force of the 2010 Act, jurisdiction of civilCourt is barred and for that reason, the decree passed by the first appellateCourt and confirmed by the High Court is not sustainable in the eyes oflaw. It is urged that there is no other suitable site for setting up of theProject; and the decision regarding suitability of the subject land hasbeen taken by the Municipal Solid Waste Committee being the expertbody in that regard. Even that decision has not been assailed nor theconcerned authorities including the Pollution Control Board have beenmade party to the suit. It is urged that the site has a separate approachroad available to transport the solid waste and the assertion made by theplaintiffs to the contrary is mischievous and false. The State has alsourged to allow this appeal and to set aside the decree passed by the firstappellate 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 appellateCourt and the High Court to decree the suit and issue mandatory injunctionagainst the authorities concerned. It is urged that setting up of the Projectat the stated location would inevitably entail environment issues in thearea and pollute the river due to dumping of waste on the site. It is urgedthat when the suit was filed, the civil Court was competent to adjudicatethe cause of action and grant relief of mandatory injunction as prayed bythe plaintiffs. As a result, the competence of the civil Court was neverquestioned by the defendants. Further, reliance is placed on the Affidavitin Compliance, which clearly indicates that the Ratnagiri Airport is locatedwithin 6 kilometres from the disputed land and the said Airport has nowbeen declared as Naval base. The subject land where the Project isproposed 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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ARatnagiri town is on the Southern side. Thus, as per the applicable rulesthere is express bar for setting up of Solid Waste Disposal Project (theProject) at the proposed location. Moreover, because of the peculiartopography, the waste water will flow towards the river in theneighbourhood and would be a serious health hazard for population ofaround 1 lakh in Ratnagiri. It is urged that the apprehension of the plaintiffsBof future mischief was not groundless but is based on strong foundationthat the site is on a slope and will create imminent toxic problem in thearea. In substance, the respondent Nos. 1 to 19 (plaintiffs) have adoptedthe reasons which had weighed with the first appellate Court and theHigh Court in second appeal and would urge that this appeal be dismissedCin 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 andMr. Nachiketa Joshi, learned counsel for the respondent Nos. 1 to 19and Mr. Sachin Patil and Mr. Rahul Chitnis, learned counsel for theDState of Maharashtra (respondent No. 20).

12. The fundamental question for our consideration is the effectof enactment of the 2010 Act. It is an Act to provide for establishmentof a National Green Tribunal (NGT) for effective and expeditious disposalof cases relating to, amongst others, environmental protection includingEenforcement of any legal right relating to environment and giving reliefand compensation for damages to persons and property and for mattersconnected therewith or incidental thereto. Chapter III of the Actdelineates the jurisdiction, powers and proceedings of the Tribunal. Section14 deals with the jurisdiction of the Tribunal (NGT) over all civil caseswhere a substantial question relating to environment (includingFenforcement of any legal right relating to environment) is involved andsuch question arises out of the implementation of the enactments specifiedin Schedule I. Section 20 predicates that the Tribunal (NGT) shall, whilepassing any order or decision or award, apply the principles of sustainabledevelopment, the precautionary principle and the polluter pays principle.GSection 29 of the 2010 Act is of some significance. It is a provisionregarding bar of jurisdiction of civil Court. Section 29 reads thus:- “29. (1) With effect from the date of establishment of the Tribunalunder this Act, no civil court shall have jurisdiction to entertainany appeal in respect of any matter, which the Tribunal isHempowered to determine under its appellate jurisdiction.

RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYANAMBEKAR & ORS. [A. M. KHANWILKAR, J.]

(2) No civil court shall have jurisdiction to settle dispute or entertainany question relating to any claim for granting any relief orcompensation or restitution of property damaged or environmentdamaged which may be adjudicated upon by the Tribunal, and noinjunction in respect of any action taken or to be taken by orbefore the Tribunal in respect of the settlement of such dispute orany such claim for granting any relief or compensation or restitutionof property damaged or environment damaged shall be grantedby the civil court.”

It will be now useful to advert to the exposition of a three-JudgeBench of this Court in Bhopal Gas Peedith Mahila Udyog Sangathan& Ors. vs. Union of India & Ors.[11]. In paragraphs 40 and 41 of thereported decision, the Court held as under: -

“40. Keeping in view the provisions and scheme of the NationalGreen Tribunal Act, 2010 (for short “the NGT Act”) particularlySections 14, 29, 30 and 38(5), it can safely be concluded that theenvironmental issues and matters covered under the NGT Act,Schedule I should be instituted and litigated before the NationalGreen Tribunal (for short “NGT”). Such approach may benecessary to avoid likelihood of conflict of orders between theHigh Courts and NGT. Thus, in unambiguous terms, we directthat all the matters instituted after coming into force of the NGTAct and which are covered under the provisions of the NGT Actand/or in Schedule I to the NGT Act shall stand transferred andcan be instituted only before NGT. This will help in renderingexpeditious and specialised justice in the field of environment toall concerned.

41. We find it imperative to place on record a caution forconsideration of the courts of competent jurisdiction thatthe cases filed and pending prior to coming into force ofthe NGT Act, involving questions of environmental lawsand/or relating to any of the seven statutes specified inSchedule I of the NGT Act, should also be dealt with by thespecialised tribunal, that is, NGT, created under theprovisions of the NGT Act. The courts may be well advisedto direct transfer of such cases to NGT in its discretion, asit will be in the fitness of administration of justice.”

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(emphasis supplied)

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A13. The question is whether the suit as filed in the year 2005would be affected by the coming into force of the 2010 Act with effectfrom 2.6.2010 and in particular consequent to establishment of theTribunal (NGT) on 18.10.2010. Indeed, the present suit was filed priorto that date. However, it was pending before the civil Court even afterthe establishment of the Tribunal (NGT). For, the trial Court decided theBsuit only on 31.1.2011. Concededly, the trial Court has not even advertedto the express provision in the form of Section 29 regarding bar ofjurisdiction of the civil Court. On perusal of the tenor of the plaint andthe subject matter of the present suit, it is indisputable that the caseplainly involved substantial question relating to environment includingCenforcement of legal right relating to environment. That cause was thefoundation for the relief of permanent injunction sought by the plaintiffs.By virtue of Section 29 and in particular the dictum in paragraph 41 ofthe reported decision of this Court, the civil Court ought not to havecontinued with the suit. It is a different matter that the trial Court choseto dismiss the suit on the finding that the plaintiffs had failed to substantiateDthe 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, theparties could have been relegated before the NGT, the special forumcreated by the 2010 Act. Indeed, the trial Court did not have the benefitof the reported decision of this Court. For, the said decision was renderedEon 9.8.2012. However, it is intriguing that even the first appellate Courtand the High Court did not think it necessary to advert to the effect ofSection 29 of the 2010 Act and in particular, the decision of this Court inBhopal Gas Peedith Mahila Udyog Sangathan (supra). The fact thatthe suit was filed in earlier point of time, does not mean that the civilCourt could have continued with the action (in this case, first appealFbefore the first appellate Court and the second appeal before the HighCourt being continuation of the suit) concerning the substantial questionrelating to environment including enforcement of legal right relating toenvironment. In any case, there remained no tittle of doubt after theexposition of this Court that such pending cause/action ought to beGtransferred to the NGT for adjudication thereof. As a concomitant ofthis conclusion, the findings and conclusions rendered in favour of theplaintiffs, in particular by the first appellate Court and the High Court,will be of no avail and in law stand effaced being without jurisdiction andnullity.

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14. Arguendo, the plaint as filed by the respondent Nos. 1 to 19also suffers from another fundamental deficiency. Indeed, it is a cleverlydrafted plaint, so as to give an impression that the competent authorityhad not taken any decision in exercise of statutory powers until the filingof the suit. However, in the written statement, clear assertion has beenmade by the defendants (appellant and respondent No. 20) that thedecision to allot suit land to the appellant and for setting up the Projectwas taken after due deliberation and consultation with the expertCommittee including in exercise of statutory powers of the concernedauthority in that regard. None of these decisions of the competentauthority has been assailed by the plaintiffs nor any declaratory reliefsought in that regard. In such a case, it would not be enough to ask forpermanent injunction simpliciter and the suit so filed ought to have beenrejected at the threshold on that count alone. We may usefully advert tothe exposition of this Court in Board of Trustees of Port of Kandla vs.Hargovind Jasraj & Anr.[12]. In paragraphs 26 to 31, the Court observedthus: -

“26. Mr Ahmadi next argued that the termination of the leasebeing illegal and non est in law, the respondent-plaintiffs couldignore the same, and so long as they or any one of them remainedin possession, a decree for injunction restraining the Port Trustfrom interfering with their possession could be passed by the courtcompetent to do so. We are not impressed by that submission.

27. The termination of the lease deed was by an order which theplaintiffs ought to get rid of by having the same set aside, or declaredinvalid for whatever reasons, it may be permissible to do so. Noorder bears a label of its being valid or invalid on its forehead.Anyone affected by any such order ought to seek redress againstthe same within the period permissible for doing so. We may inthis regard refer to the following oft-quoted passagein Smith v. East Elloe Rural District Council (1956 AC 736).The following are the observations regarding the necessity ofrecourse to the Court for getting the invalidity of an orderestablished:

“… An order, even if not made in good faith, is still an actcapable of legal consequences. It bears no brand of invalidityon its forehead. Unless the necessary proceedings are taken A

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at law to establish the cause of invalidity and to get it quashedor otherwise upset, it will remain as effective for its ostensiblepurpose as the most impeccable of orders.’ [Smith case (1956AC 736) pp. 769-70]

This must be equally true even where the brand of invalidity isplainly visible: for there also the order can effectively be resistedin law only by obtaining the decision of the court. The necessityof recourse to the court has been pointed put repeatedly in theHouse of Lords and Privy Council without distinction betweenpatent and latent defects.” [Ed.: Wade and Forsythin Administrative Law, 7th Edn., 1994.]

28. The above case was approved by this Court in KrishnadeviMalchand Kamathia v. Bombay Environmental ActionGroup [(2011) 3 SCC 363], wherein this Court observed: (SCCpp. 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 samecannot decide that the said order/notification is not binding uponit. It has to approach the court for seeking such declaration.The order may be hypothetically a nullity and even if its invalidityis challenged before the court in a given circumstance, thecourt may refuse to quash the same on various grounds includingthe standing of the petitioner or on the ground of delay or onthe doctrine of waiver or any other legal reason. The ordermay be void for one purpose or for one person, it may not beso for another purpose or another person.”

29. To the same effect is the decision of this Court in PuneMunicipal Corpn. v. State of Maharashtra [(2007) 5 SCC 211]wherein this Court discussed the need for determination ofinvalidity of an order for public purposes: (SCC pp. 225-26, paras36 & 38-39)

“36. It is well settled that no order can be ignored altogetherunless a finding is recorded that it was illegal, void or not inconsonance with law. As Prof. Wade states:

‘The principle must be equally true even where the “brandof invalidity” is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decisionof 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 anorder only if the right remedy is sought by the right personin the right proceedings and circumstances. The order maybe hypothetically a nullity, but the court may refuse to quashit because of the plaintiff’s lack of standing, because hedoes not deserve a discretionary remedy, because he haswaived his rights, or for some other legal reason. In anysuch case the “void” order remains effective and is, in reality,valid. It follows that an order may be void for one purposeand valid for another; and that it may be void against oneperson but valid against another.’ [H.W.R. Wade,Administrative Law (6th Edn., Clarendon Press, Oxford1988) 352-53]

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38. A similar question came up for consideration before thisCourt in State of Punjab v. Gurdev Singh [(1991) 4 SCC 1].…

39. Setting aside the decree passed by all the courts andreferring to several cases, this Court held that if the partyaggrieved by invalidity of the order intends to approach thecourt for declaration that the order against him was inoperative,he must come before the court within the period prescribed bylimitation. ‘If the statutory time of limitation expires, the courtcannot give the declaration sought for.’”

30. Reference may also be made to the decisions of this Courtin R. Thiruvirkolam v. Presiding Officer [(1997) 1 SCC 9], State of Kerala v. M.K. Kunhikannan Nambiar ManjeriManikoth [(1996) 1 SCC 435] and Tayabbhai M. Bagasarwallav. Hind Rubber Industries (P) Ltd. [(1997) 3 SCC 443], wherethis Court has held that an order will remain effective and lead tolegal consequences unless the same is declared to be invalid by acompetent court.

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A31. It is true that in some of the above cases, this Court wasdealing with proceedings arising under Article 226 of theConstitution, exercise of powers whereunder is discretionary butthen grant of declaratory relief under the Specific Relief Act isalso discretionary in nature. A civil court can and may inappropriate cases refuse a declaratory decree for good andBvalid reasons which dissuade the court from exercising itsdiscretionary jurisdiction. Merely because the suit is withintime is no reason for the court to grant a declaration. Sufficeit to say that filing of a suit for declaration was in thecircumstances essential for the plaintiffs. That is preciselyCwhy the plaintiffs brought a suit no matter beyond the period oflimitation prescribed for the purpose. Such a suit was neitherunnecessary nor a futility for the plaintiff’s right to remain inpossession depended upon whether the lease was subsisting orstood terminated. It is not, therefore, possible to fall back uponthe possessory rights claimed by the plaintiffs over the leasedDarea to bring the suit within time especially when we have, whiledealing with the question of possession, held that possession alsowas taken over pursuant to the order of termination of the leasein question.”

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We may also refer to Anathula Sudhakar vs. P. Buchi Reddy(D) by LRs. & Ors.[13], wherein this Court opined that where theaverments regarding title are mentioned in the plaint but if the matterinvolves complicated question of fact and law relating to title, the Courtwill relegate the parties to the remedy of a comprehensive suit forFdeclaration of title, instead of deciding the issue in a suit for mereinjunction.

15. Applying the principle underlying these dicta, as no declarationhas been sought by the plaintiffs in the present case, the suit for simpliciterpermanent injunction could not be proceeded further at all. Even for thisGreason, the decree passed by the first appellate Court and confirmed bythe High Court, cannot stand the test of judicial scrutiny. The Courtshave clearly glossed over this crucial aspect, which disentitled the plaintiffsfor relief of permanent injunction simpliciter.

16. Be that as it may, on a fair reading of the judgment of the trialCourt, it is manifest that the trial Court had opined that the plaintiffsfailed to substantiate the case set out in the plaint regarding the actionablenuisance. The trial Court justly analysed the evidence of the plaintiffs inthe first place to answer the controversy before it. The first appellateCourt, however, after adverting to the oral and documentary evidenceproduced by the parties, proceeded to first find fault with the evidenceof the defendants to answer the controversy in favour of the plaintiffs.The first appellate Court committed palpable error in not keeping in mindthat the initial burden of proof was on the plaintiffs to substantiate theircause for actionable nuisance, which they had failed to discharge. Insuch a case, the weakness in the defence cannot be the basis to grantrelief to the plaintiffs and to shift the burden on the defendants, as thecase may be. Thus understood, the findings and conclusions reached bythe first appellate Court will be of no avail to the plaintiffs.

17. Be that as it may, the first appellate Court ought to have keptin mind the principle expounded in Kuldip Singh vs. Subhash ChanderJain & Ors.[14]. In paragraphs 6 to 8 and 10 of the reported decision, theCourt observed thus: - “6. A quia timet action is a bill in equity. It is an action preventivein nature and a specie of precautionary justice intended to preventapprehended wrong or anticipated mischief and not to undo awrong or mischief when it has already been done. In such anaction the court, if convinced, may interfere by appointment ofreceiver or by directing security to be furnished or by issuing aninjunction or any other remedial process. In Fletcher v. Bealey[(1885) 28 Ch D 688], Mr Justice Pearson explained the law as toactions quia timet as follows:

“There are at least two necessary ingredients for a quiatimet action. There must, if no actual damage is proved,be proof of imminent danger, and there must also be proofthat the apprehended damage will, if it comes, be verysubstantial. I should almost say it must be proved that itwill be irreparable, because, if the danger is not provedto be so imminent that no one can doubt that, if theremedy is delayed the damage will be suffered, I think itmust be shown that, if the damage does occur at any AB

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time, it will come in such a way and under suchcircumstances that it will be impossible for the plaintiffto protect himself against it if relief is denied to him ina 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 nuisancehas been committed; but it may, by virtue of its jurisdiction torestrain acts which, when completed, will result in a ground ofaction, interfere before any actual nuisance has been committed,where it is satisfied that the act complained of will inevitablyresult in a nuisance. The plaintiff, however, must show astrong case of probability that the apprehended mischiefwill in fact arise in order to induce the court to interfere.

If there is no reason for supposing that there is anydanger of mischief of a serious character being donebefore the interference of the court can be invoked, aninjunction will not be granted”.

8. In our opinion a nuisance actually in existence stands on adifferent footing than a possibility of nuisance or a future nuisance.An actually-existing nuisance is capable of being assessed in termsof its quantum and the relief which will protect or compensate theplaintiff consistently with the injury caused to his rights is alsocapable of being formulated. In case of a future nuisance, amere possibility of injury will not provide the plaintiff witha cause of action unless the threat be so certain or imminentthat an injury actionable in law will arise unless preventedby an injunction. The court may not require proof ofabsolute certainty or a proof beyond reasonable doubt beforeit may interfere; but a strong case of probability that theapprehended mischief will in fact arise must be shown bythe plaintiff. In other words, a future nuisance to be actionablemust be either imminent or likely to cause such damage as wouldbe irreparable once it is allowed to occur. There may be yet anothercategory of actionable future nuisance when the likely act of thedefendant is inherently dangerous or injurious such as digging aditch across a highway or in the vicinity of a children’s school or opening a shop dealing with highly inflammable products in themidst of a residential locality.

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10. In the case at hand, it is not disputed that the bhatti was notoperational on the date of filing of the suit. A bhatti (baking oven)is not an activity which by itself is illegal or inherently dangerousor injurious. It cannot also be said that the bhatti merely becauseit has been constructed or become operational would pose suchan injury as would be irreparable or would be incapable of beingtaken care of by a process known to law. The pleadings raised bythe plaintiffs do not and could not have set out the nature andextent 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 theresidents of the locality. At another place it has stated that “smoke,gases and ash etc.” which were emitted from the furnace wouldcertainly be a nuisance to the residents of the locality. The findingsso recorded are oscillating and are not clear and specific. Theyare guesswork. A clear finding as to nuisance could not havebeen recorded by basing it on generalised statements ofcertain witnesses stating that a bhatti emits smoke, heatand smell which statements would be mere ipse dixit of thewitnesses. There is no foundation either in pleadings or inevidence for observation made by the High Court as togases, ash etc. emitting from the furnace. In our opinion,no case for quia timet action was made out. The suit filedby the plaintiffs was premature. No relief, much less by wayof preventive injunction, could have been allowed to theplaintiffs. In our opinion, the suit as filed by the plaintiffs shouldbe dismissed with liberty to file an appropriate suit on proof ofcause of action having accrued to the plaintiffs consistently withthe observations made hereinabove.”

We have no hesitation in taking the view that the first appellateCourt proceeded on a mere possibility of injury likely to be caused onaccount of setting up of the proposed Project. On the other hand, thedefendants asserted that the Project has been conceived and the suit A

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Aland has been identified for that purpose. The Project is at a nascentstage for which permissions would be obtained from the concernedauthorities under the environment laws before implementing the same.At this initial stage itself, the civil Court was moved by the plaintiffs onthe basis of their understanding of the situation.B18. Further, Section 41(f) of the 1963 Act clearly mandates thatan injunction cannot be granted to prevent, on the ground of nuisance, anact 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 thatthe plaintiffs would have equally efficacious relief by resorting to othermode of proceedings. To wit, when the proposal regarding setting up ofCthe Project is being finalised and permissions are granted by the competentauthority under the concerned statutory dispensation, at that time, theaffected parties would be free to make representation which can beconsidered by the competent authority appropriately. Hence, the civilCourt ought not to have granted injunction simpliciter also because ofDthe stipulation in Section 41(h) of the 1963 Act, wherein it is made amplyclear that when equally efficacious relief can certainly be obtained byany other usual mode of proceeding except in case of breach of trust, aninjunction cannot be granted. The scheme of Section 41 of the 1963 Actpredicates that the civil Court must refuse to grant injunction in thesituations referred to therein vide clauses (a) to (j). The recent amendmentEto that provision by Act 18 of 2018 has inserted clause (ha), for makingit explicitly clear that the civil Court must refuse to grant injunction if itwould impede or delay the progress of completion of any infrastructureproject, such as the present one. Indeed, this amended provision doesnot apply to the present case. However, the Court could not haveFanswered 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 therespondent Nos. 1 to 19 (plaintiffs) ought to have been dismissed, aswas rightly done by the trial Court. Indeed, the dismissal of the suitGwould not come in the way of the plaintiffs or any other person affectedby the proposed Project to make representation to the appropriateauthority, considering the proposal for grant of statutory permissions underthe 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.H

RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYANAMBEKAR & ORS. [A. M. KHANWILKAR, J.]

20. Accordingly, this appeal succeeds and the judgment and decreepassed 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 noorder as to costs. Pending interlocutory applications, if any, shall standdisposed of.

Kalpana K. Tripathy

Appeal allowed.

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