TMI Blog2020 (5) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - The fact that the suit was filed in earlier point of time, does not mean that the civil Court could have continued with the action (in this case, first appeal before the first appellate Court and the second appeal before the High Court being continuation of the suit) concerning the substantial question relating to environment including enforcement of legal right relating to environment. In any case, there remained no tittle of doubt after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 kms. away from the limits of the Ratnagiri city at a hilly and sloppy area. The entire area is rocky and hard. The location selected for setting up the Project was wholly ill advised, as it would entail in serious health problem for the villagers in the locality and also inevitably pollute the river nearby flowing from Kelye village through the villages Majgaon, Mhamurwadi upto Sakharat. Moreover, on this river, Sheel Dam is located on the boundary of Fanasavle village, which provides water supply to Ratnagiri city. Thus, the Project is likely to pollute the Dam water as well. It is asserted that the entire Kokan area receives heavy rainfall between months of June and October and considering the direction of flow of river and other streams in the nearby area, there is imminent possibility of causing severe water pollution due to the solid waste piled up on the suit property. Initially, some other site was identified for setting up the Project, but due to political intervention, it has been shifted to the present location, which is not at all ideal being a rocky hard and sloppy track. Other fallow lands are available in the Nagar Palika jurisdiction, which are more suited for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be obtained from the competent authority. It is stated that initially the authorities had selected three places for setting up the Project, but it was realised that the other two locations would be non-compliant with the prescribed conditions under the concerned environment laws. As a matter of fact, the State Government had established a High-Level Committee to make recommendations about the location of the Project, on 5.12.2003 consisting of (1) Regional Officer, Pollution Control, (2) Sub Divisional Forest Officer, (3) Jilla Parishad Geologist, Ground Water Survey and Development Machinery, (iv) Town Planner and (v) District Health Officer. The said Committee, after due deliberations identified the suit property as ideal for setting up of the proposed Project, which indeed would be compliant with all environment regulations. The appellant, therefore, stoutly denied the assertion in the plaint that the decision was taken by the appellant unilaterally and without following due process. The appellant also denied the assertion about likelihood of polluting the Dam water or river flowing from village Kelye through other villages upto the sea. The appellant denied the factual ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiffs (respondent Nos. 1 to 19), noted that the assertions made by the plaintiffs were founded on their understanding of the matter and no proof to support that claim was forthcoming. The trial Court noted the admission given by the plaintiffs witnesses that no proof has been produced by them to establish the fact of existence of public settlements near the suit property. Also, that they had no knowledge or expertise about the solid waste Project nor they collected any information from any expert before asserting that the said Project would not be viable and entail in causing pollution to the Dam water and river as such. They also admitted that the case set out by them was on the basis of their personal knowledge and there was no scientific basis. In the cross examination, they had admitted that before taking possession of the disputed land for the proposed Project, the Project Officer of the Nagar Parishad and other Officers had held discussion with the Dandeadom Sarpanch and members. These admissions clearly belied the case made out by the plaintiffs that the appellant had decided to set up the proposed Project unilaterally and without any consultation. The trial Court, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussion is that, it is an admitted position that S. No. 219 i.e. suit property is situated on hilly area having sheer slope towards river situated at its bottom. If such huge quantity of solid waste is being stored on the suit property, then in rainy season definitely it will decompose and it will be fermented and it will flow into the river water, because of which entire river water and dam water will be polluted. Admittedly, that Sheel dam water is being supplied to the citizens of Ratnagiri city and citizens in the vicinity. If a such polluted water is supplied, then it will cause danger to the life and health of the citizens. The defendants have not produced on record any document, which will show that the Pollution Control Board and Bhujal Survey Officer has surveyed the suit property as convenient and suitable for the project. No such clearance certificate about suit property is produced on record. So also the defendants have not produced on record any document, which will show that they will filter the water and supply it to the citizens. Therefore, if the water will be flown into river then definitely pollution will happen and it will cause danger to the life and health o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd appeal under section 100 of the Code of Civil Procedure, 1908. There is no substantial question of law having arisen in this second appeal. 13. Second appeal is devoid of merits and is accordingly dismissed. No order as to costs. 8. Aggrieved, the appellant has filed the present appeal by special leave. The thrust of the grievance of the appellant is that the first appellate Court and the High Court committed manifest error in entertaining the claim of the plaintiffs (respondent Nos. 1 to 19), which was not substantiated by the plaintiffs themselves. The plaintiffs had failed to discharge the onus. They had failed to establish jurisdictional facts regarding actionable nuisance and moreso their suit was founded on mere apprehensions on the basis of their understanding of the situation of the possibility of nuisance or future nuisance. It was a quia timet action for passing a preventive and precautionary permanent injunction against the authorities. Significantly, no declaratory relief was sought and the suit was only to grant simpliciter permanent injunction, which cannot be countenanced. It was a speculative suit and the plaintiffs having failed to discharge their init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 before the National Green Tribunal [9] under the National Green Tribunal Act, 2010 [10] . In that, the Tribunal (NGT) is established to deal exclusively concerning the subject of environmental protection and conservation of forests and other natural resources and there is express bar on the jurisdiction of the Civil Court, much less to grant any injunction or deal with environmental issues in terms of Section 29 of the 2010 Act. It is urged that after coming into force of the 2010 Act, jurisdiction of civil Court is barred and for that reason, the decree passed by the first appellate Court and confirmed by the High Court is not sustainable in the eyes of law. It is urged that there is no other suitable site for setting up of the Project; and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal and would urge that this appeal be dismissed in light of the finding of fact so recorded by the said Courts. 11. We have heard Mr. Rakesh Bhatkal and Mr. Somiran Sharma, learned counsel for the appellant, Mr. Sandeep Deshmukh and Mr. Nachiketa Joshi, learned counsel for the respondent Nos. 1 to 19 and Mr. Sachin Patil and Mr. Rahul Chitnis, learned counsel for the State of Maharashtra (respondent No. 20). 12. The fundamental question for our consideration is the effect of enactment of the 2010 Act. It is an Act to provide for establishment of a National Green Tribunal (NGT) for effective and expeditious disposal of cases relating to, amongst others, environmental protection including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. Chapter III of the Act delineates the jurisdiction, powers and proceedings of the Tribunal. Section 14 deals with the jurisdiction of the Tribunal (NGT) over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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) 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 matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the defendants (appellant and respondent No. 20) that the decision to allot suit land to the appellant and for setting up the Project was taken after due deliberation and consultation with the expert Committee including in exercise of statutory powers of the concerned authority in that regard. None of these decisions of the competent authority has been assailed by the plaintiffs nor any declaratory relief sought in that regard. In such a case, it would not be enough to ask for permanent injunction simpliciter and the suit so filed ought to have been rejected at the threshold on that count alone. We may usefully advert to the exposition of this Court in Board of Trustees of Port of Kandla vs. Hargovind Jasraj Anr. (2013) 3 SCC 182 . In paragraphs 26 to 31, the Court observed thus: - 26. Mr Ahmadi next argued that the termination of the lease being illegal and non est in law, the respondent plaintiffs could ignore the same, and so long as they or any one of them remained in possession, a decree for injunction restraining the Port Trust from interfering with their possession could be passed by the court competent to do so. We are not impressed by that submission. 27. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Pune Municipal Corpn. v. State of Maharashtra [(2007) 5 SCC 211] wherein this Court discussed the need for determination of invalidity of an order for public purposes: (SCC pp. 225 26, paras 36 38-39) 36. It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As Prof. Wade states: The principle must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court [ H.W.R. Wade, Administrative Law (6th Edn., Clarendon Press, Oxford 1988) 352]. He further states: The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the void order remains effective and is, in reality, valid. It follows t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of possession, held that possession also was taken over pursuant to the order of termination of the lease in question. (emphasis supplied) We may also refer to Anathula Sudhakar vs. P. Buchi Reddy (D) by LRs. Ors. (2008) 4 SCC 594, wherein this Court opined that where the averments regarding title are mentioned in the plaint but if the matter involves complicated question of fact and law relating to title, the Court will relegate the parties to the remedy of a comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. 15. Applying the principle underlying these dicta, as no declaration has been sought by the plaintiffs in the present case, the suit for simpliciter permanent injunction could not be proceeded further at all. Even for this reason, the decree passed by the first appellate Court and confirmed by the High Court, cannot stand the test of judicial scrutiny. The Courts have clearly glossed over this crucial aspect, which disentitled the plaintiffs for relief of permanent injunction simpliciter. 16. Be that as it may, on a fair reading of the judgment of the trial Court, it is manifest that the trial Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect himself against it if relief is denied to him in a quia timet action . 7.Kerr on Injunctions (6th Edn., 1999) states the law on threatened injury as under: The court will not in general interfere until an actual nuisance has been committed; but it may, by virtue of its jurisdiction to restrain acts which, when completed, will result in a ground of action, interfere before any actual nuisance has been committed, where it is satisfied that the act complained of will inevitably result in a nuisance. The plaintiff, however, must show a strong case of probability that the apprehended mischief will in fact arise in order to induce the court to interfere. If there is no reason for supposing that there is any danger of mischief of a serious character being done before the interference of the court can be invoked, an injunction will not be granted . 8. In our opinion a nuisance actually in existence stands on a different footing than a possibility of nuisance or a future nuisance. An actually existing nuisance is capable of being assessed in terms of its quantum and the relief which will protect or compensate the plaintiff consistently with the injury caused to his rights is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion, no case for quia timet action was made out. The suit filed by the plaintiffs was premature. No relief, much less by way of preventive injunction, could have been allowed to the plaintiffs. In our opinion, the suit as filed by the plaintiffs should be dismissed with liberty to file an appropriate suit on proof of cause of action having accrued to the plaintiffs consistently with the observations made hereinabove. (emphasis supplied) We have no hesitation in taking the view that the first appellate Court proceeded on a mere possibility of injury likely to be caused on account of setting up of the proposed Project. On the other hand, the defendants asserted that the Project has been conceived and the suit land has been identified for that purpose. The Project is at a nascent stage for which permissions would be obtained from the concerned authorities under the environment laws before implementing the same. At this initial stage itself, the civil Court was moved by the plaintiffs on the basis of their understanding of the situation. 18. Further, Section 41(f) of the 1963 Act clearly mandates that an injunction cannot be granted to prevent, on the ground of nuisance, a ..... 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