Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2412/2020
(Arising out of SLP(C) No. 18417/2017)
Ratnagiri Nagar Parishad …Appellant(s)
Versus
Gangaram Narayan Ambekar & Ors. ...Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. Leave granted.
2. This appeal emanates from the judgment and order dated
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29.8.2016 passed by the High Court of Judicature at Bombay in
Second Appeal No. 771/2015, whereby the judgment and decree
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dated 11.2.2015 passed by the District Judge, Ratnagiri 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
Signature Not Verified
(original plaintiffs) in the Court of Civil Judge, Senior Division,
Digitally signed by
DEEPAK SINGH
Date: 2020.05.06
16:03:13 IST
Reason:
1 For short, “the High Court”
2 For short, “the first appellate Court”
2
3
Ratnagiri 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
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Disposal Project 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 2H46
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Aars. , 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
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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up the Project was wholly illadvised, as it would entail in serious
health problem for the villagers in the locality and also inevitably
pollute the river nearby flowing from Kelye village through the
villages Majgaon, Mhamurwadi upto Sakharat. Moreover, on this
river, Sheel Dam is located on the boundary of Fanasavle village,
which provides water supply to Ratnagiri city. Thus, the Project
is likely to pollute the Dam water as well. It is asserted that the
entire Kokan area receives heavy rainfall between months of June
and October and considering the direction of flow of river and
other streams in the nearby area, there is imminent possibility of
causing severe water pollution due to the solid waste piled up on
the suit property. Initially, some other site was identified for
setting up the Project, but due to political intervention, it has
been shifted to the present location, which is not at all ideal
being a rocky hard and sloppy track. Other fallow lands are
available in the Nagar Palika jurisdiction, which are more suited
for the intended Project spread over in several acres and are at
the base of the Ratnadurg Fort. The authorities had in fact
commenced the process of acquiring that land near Bhataye
seashore within the limits of Fansop village, but for reasons best
known to the authorities, the idea to continue the Project at that
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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
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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 illeffects 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
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(Protection) Act, 1986 , which had already come into force
including the Municipal Solid Wastes (Management and
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Handling) Rules, 2000 . 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
noncompliant with the prescribed conditions under the
concerned environment laws. As a matter of fact, the State
Government had established a HighLevel Committee to make
6 For short, “the 1986 Act”
7 For short, “the 2000 Rules”
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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
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records. In other words, the plaintiffs have made irresponsible
and frivolous statements in the plaint without any basis to
substantiate the same. According to the appellant, the suit was
politically motivated. The appellant specifically asserted that the
Project site was yet to be finalised by the appellant and would
abide strictly by the recommendations of the experts providing for
stringent conditions. The appellant asserted that because of the
pendency of the suit proceedings, necessary permissions and
clearances from the competent authority under the environment
laws could not be pursued further. It is thus stated that the
Project would be set up only after such permissions are granted
and would be implemented under the strict supervision of the
concerned authorities. The appellant also stated that the suit
was not maintainable and ought to be dismissed with 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?
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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 crossexamination, they had admitted
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that before taking possession of the disputed land for the
proposed Project, the Project Officer of the Nagar Parishad and
other Officers had held discussion with the Dandeadom
Sarpanch and members. These admissions clearly belied the
case made out by the plaintiffs that the appellant had decided to
set up the proposed Project unilaterally and without any
consultation. The trial Court, therefore, proceeded to dismiss the
suit filed by the respondent Nos. 1 to 19 by concluding thus:
“15. In the present case, the Plaintiffs have not given the
strong proof for establishing that there is residential
colonies near the Proposed project. In the same way, they
have not established the manner in which water pollution
will be caused due to the proposed project. For the
purpose of establishing that there will be water pollution
due to the proposed project, it was necessary for the
Plaintiffs to establish the so called Plan of the flow of
Dandeadom river. For the purpose of establishing that
there will be water pollution due to the project, it was
necessary for the plaintiffs to give evidence of expert
persons. The Plaintiffs have admitted in their cross
examination that they have taken personal information of
the solid Waste Project. The allegations made in the suit
by the plaintiff seems to be their personal opinion. In the
same way, it becomes clear that there is no scientific base
to their opinion. As the Plaintiffs have established that
there will be the alleged pollution in future, the question
of giving the permanent injunction does not arise. The
plaintiffs have not established that their legal right has
been neglected. The Plaintiffs have not given prima facie
evidence for giving the permanent 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.
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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?
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
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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.”
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,
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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 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
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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 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
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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
(Management and Handling) Project on the suit property
i.e. Gat No. 219 of village Dandeadam.
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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
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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 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
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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
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granted injunction not only on account of Section 41(f) of the
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Specific Relief Act, 1963 , 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 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
9
before the National Green Tribunal under the National Green
10
Tribunal Act, 2010 . In that, the Tribunal (NGT) is established
to deal exclusively concerning the subject of environmental
8 For short, “the 1963 Act”
9 For short, “the NGT”
10 For short, “the 2010 Act”
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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.
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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
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
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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
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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.
( 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
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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 threeJudge
Bench of this Court in
Bhopal Gas Peedith Mahila Udyog
11
Sangathan & Ors. vs. Union of India & Ors. . In paragraphs
40 and 41 of the reported decision, the Court held as under:
“ Keeping in view the provisions and scheme of the
40.
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
24
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
25
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
(supra). The fact that the suit was
Mahila Udyog Sangathan
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
26
High Court, will be of no avail and in law stand effaced being
without jurisdiction and nullity.
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.
27
12
Hargovind Jasraj & Anr. . 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.
The termination of the lease deed was by an order
27.
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 oftquoted 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 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. 76970]
(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.]
12 (2013) 3 SCC 182
28
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. 36970, 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. 22526, paras 36 & 3839)
“ 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
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,
29
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) 35253]
*
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.
It is true that in some of the above cases, this Court
31.
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
30
it to say that filing of a suit for declaration was in the
. That is
circumstances essential for the plaintiffs
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
13
, wherein this Court opined that where the
(D) by LRs. & Ors.
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
13 (2008) 4 SCC 594
31
clearly glossed over this crucial aspect, which disentitled the
plaintiffs for relief of permanent injunction simpliciter.
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.
32
17. Be that as it may, the first appellate Court ought to have
kept in mind the principle expounded in Kuldip Singh vs.
14
. In paragraphs 6 to 8 and 10
Subhash Chander Jain & Ors.
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 action. There must, if no
quia timet
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 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
action ”.
timet
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
14 (2000) 4 SCC 50
33
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 actuallyexisting 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 opening a shop
dealing with highly inflammable products in the midst of
a residential locality.
xxx xxx xxx
10. In the case at hand, it is not disputed that
the bhatti was not operational on the date of filing of the
suit. A bhatti (baking oven) is not an activity which by
itself is illegal or inherently dangerous or injurious. It
cannot also be said that the bhatti merely because it has
been constructed or become operational would pose such
an injury as would be irreparable or would be incapable
of being taken care of by a process known to law. The
pleadings raised by the plaintiffs do not and could not
have set out the nature and extent of injury, if any,
caused or likely to be caused to the plaintiffs. The High
Court has at one place observed that the bhatti would
“emit smoke, heat and smell” which would be a nuisance
to the residents of the locality. At another place it has
stated that “smoke, gases and ash etc.” which were
emitted from the furnace would certainly be a nuisance
to the residents of the locality. The findings so recorded
34
are oscillating and are not clear and specific. They are
guesswork.
A clear finding as to nuisance could not
have been recorded by basing it on generalised
statements of certain witnesses stating that
a bhatti emits smoke, heat and smell which
statements would be mere ipse dixit of the
witnesses. There is no foundation either in pleadings
or in evidence for observation made by the High
Court as to gases, ash etc. emitting from the furnace.
In our opinion, no case for quia timet action was
made out. The suit filed by the plaintiffs was
premature. No relief, much less by way of preventive
injunction, could have been allowed to the plaintiffs.
In our opinion, the suit as filed by the plaintiffs should
be dismissed with liberty to file an appropriate suit on
proof of cause of action having accrued to the plaintiffs
consistently with the observations made hereinabove.”
(emphasis supplied)
We have no hesitation in taking the view that the first appellate
Court proceeded on a mere possibility of injury likely to be
caused on account of setting up of the proposed Project. On the
other hand, the defendants asserted that the Project has been
conceived and the suit land has been identified for that purpose.
The Project is at a nascent stage for which permissions would be
obtained from the concerned authorities under the environment
laws before implementing the same. At this initial stage itself,
the civil Court was moved by the plaintiffs on the basis of their
understanding of the situation.
18. Further, Section 41(f) of the 1963 Act clearly mandates that
an injunction cannot be granted to prevent, on the ground of
35
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
36
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.
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
37
made hitherto. There shall be no order as to costs. Pending
interlocutory applications, if any, shall stand disposed of.
..................................J.
(A.M. Khanwilkar)
..................................J.
(Dinesh Maheshwari)
New Delhi;
May 6, 2020.