IMPORTANT POINT
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.

Headnote:Torts-Nuisance - Quia timet action-Condition precedent to grant relief-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 -Defendant, constructing bhatti (baking oven) in his house to run bakery-Plaintiff, neighbour filing suit for injunction restraining defendant from operating bhatti contending operation of bhatti would result in emitting smell and generating heat and smoke which taken together would amount to nuisance-Held, no case for quia timet action made out-Suit premature-Preventive injunction could not be granted-Suit dismissed with liberty to file appropriate suit on proof of cause of action having accrued.
       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. (Para 6)
       A nuisance actually in existence stands on a different footing than a possibility of nuisance or a future nuisance. An actually existing nuisance is capable of being assessed in terms of its quantum and the relief which will protect or compensate the plaintiff consistently with the injury caused to his rights is also capable of being formulated. In case of a future nuisance, a mere possibility of injury will not provide the plaintiff with a cause of action unless the threat be so certain or imminent that an injury actionable in law will arise unless prevented by an injunction. The Court may not require proof of absolute certainly 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. (Para 7)
       The nuisance complained of by the plaintiffs and which was yet to accrue was to fall in the category of private nuisance. The remedies for private nuisance are (1) Abatement, (2) Damages, and (3) Injunction. In order to obtain an injunction it must be shown that the injury complained of as present or impending is such as by reason of its gravity, or its permanent character, or both, cannot be adquately compensated in damages. If the injury is continuous the Court will not refuse an injunction because the actual damages arising from it is slight. (Para 8)
       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 nuisance to the residents of the locality. At another place it has stated that smoke, gases and ash etc. which were emitted from the furnace would certainly be a nuisance to the residents of the locality. The findings so recorded are oscillating and are not clear and specific. They are a guess work. A clear finding as to nuisance could not have been recorded by basing it on generalised statements or certain witnesses stating that bhatti emits smoke, heat and smell which statements would be mere ipsa 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 herein above. (Para 9)

JUDGMENT

R.C. Lahoti, J.-Plaintiff/respondents No. 1 to 3 and defendant No. 1/appellant are neighbours having their properties in the city of Ludhiana. Sometime in the month of August, 1978, the appellant constructed a bhatti (backing oven) in his premises. He also moved an application to the Municipal Corporation of Ludhiana seeking grant of licence to run the bakery. The plaintiff raised a protest and then filed a suit seeking an injunction against the appellant restraining him from running/operating the bhatti, and also an injunction against the Municipal Corporation restraining it from issuing the licence sought for by the appellant. During the pendency of the suit the lincence under Section 342 of the Punjab Municipal Corporation Act, 1976 was granted by the Municipal Corporation to the appellant. By its judgment and decree dated 3-3-1981 the Trial Court dismissed the suit against the Municipal Corporation forming an opinion that in as much as the licence had already been issued the prayer for the grant of preventive injunction in that regard was rendered infructuous, also that the Municipal Corporation could not be restrained by the Civil Court from exercising a statutory power by issuing an injunction. The Trial Court also observed that if the operation of bhatti by the defendant No. 1 was a source of nuisance to the neighbours or any other persons, an objection could be raised before the Municipal Commissioner who could either cancel the licence already granted or could refuse to renew the same further. So far as the relief sought for against the defendant No. 1/appellant is concerned, the Trial Court was of the opinion that the bhatti was proposed to be run in a locality which was purely residential having been so ear-marked in the town planning scheme also and further the operation of bhatti would result in emitting smell and generating heat and smoke which taken together would amount to nuisance and so the plaintiffs were entitled to issuance of an injunction restraining the defendant No.1/appellant from running the bhatti for manufacturing bakery products in his house. Accordingly, the suit was decreed against the defendant No. 1/appellant injuncting him from running the bhatti.

2. The defendant No. 1 preferred an appeal before the Additional District Judge who framed an opinion that the locality was not purely a residential one as a few other commercial activities were also being carried on in the vicinity of the premises belonging to the parties. The learned Additional District Judge himself carried out an inspection of the bhatti constructed by the defendant No. 1. He found that there was a chimney installed in the bhatti which was about 12 feet in height. The designing of the bhatti revealed that the fire-wood would burn in between two parallel brick-linings and the heat generated by burning of the fire-wood would not travel much beyond the bhatti so as to cause any inconvenience to others. In the opinion of the learned Additional District Judge the operation of the bhatti was not likely to cause any such nuisance which could be termed actionable. On such findings the appeal was allowed setting aside the decree passed by the Trial Court.

3. The plaintiffs preferred second appeal before the High Court. The learned Single Judge who heard the second appeal felt not happy about the learned Additional District Judge having disposed of the appeal basing the judgment mostly on the opinion formed by carrying out an inspection of the defendant No. 1 s premises. Without discussing the evidence in details, the High Court made an observation that the plaintiff Subhash Chander, PW-1, and other witnesses produced by him had stated that the bhatti would emit smoke, heat and smell which were nuisance to the residents of the locality. The High Court also referred to certain correspondence exchanged between the district health authorities and the Municipal Corporation. The High Court observed :-

"...I find that the statements of Sub

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2000 Supreme(SC) 618

IMPORTANT POINTA 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.

IMPORTANT POINT
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.