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SUPREME COURT OF INDIA
A.M. Khanwilkar, Dinesh Maheshwari, JJ.
Ratnagiri Nagar Parishad – Appellant(s)
Versus
Gangaram Narayan Ambekar & Ors. – Respondent(s)
CIVIL APPEAL NO. 2412 of 2020 (Arising out of SLP(C) No. 18417 of 2017)
Decided On : 06-05-2020
National Green Tribunal Act, 2010 – Section 29 – Specific Relief Act, 1963 – Section 41(f) – Suit for simpliciter permanent injunction – Enforcement of legal right relating to environment – Where averments regarding title are mentioned in plaint but if matter involves complicated question of fact and law relating to title, Court will relegate parties to remedy of a comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction – Plaintiffs failed to substantiate case set out in plaint regarding actionable nuisance – As no declaration has been sought by plaintiffs in present case, suit for simpliciter permanent injunction could not be proceeded further at all – Even for this reason, decree passed by first appellate Court and confirmed by High Court, cannot stand test of judicial scrutiny – Courts have clearly glossed over this crucial aspect, which disentitled plaintiffs for relief of permanent injunction simpliciter – First appellate Court committed palpable error in not keeping in mind that initial burden of proof was on plaintiffs to substantiate their cause for actionable nuisance which they had failed to discharge – In such a case, weakness in defence cannot be basis to grant relief to plaintiffs and to shift burden on defendants – First appellate Court proceeded on a mere possibility of injury likely to be caused on account of setting up of proposed Project – 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 – When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust, injunction cannot be granted – Judgment and decree passed by first appellate Court and by High Court, set aside and civil suit filed by plaintiffs (respondents Nos. 1 to 19) dismissed. (Paras 13, 14, 15, 16, 17, 18, 19 and 20)
Facts of the Case:
Present appeal emanates from the judgment and order dated 29.8.2016 passed by the High Court of Judicature at Bombay in Second Appeal No. 771/2015, whereby the judgment and decree 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 (original plaintiffs) in the Court of Civil Judge, Senior Division, Ratnagiri3 being RCS No. 25/2005 for permanent injunction against the appellant and respondent No. 20 (State of Maharashtra), restraining them from starting the Solid Waste Disposal Project4 at the suit property, has been decreed. 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.
Findings of the Court:
Dismissal of 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.
Result : Appeal allowed.
Key Points: - The judgment discusses the bar of civil court jurisdiction for environmental matters after the establishment of the National Green Tribunal under the 2010 Act, including Section 29 and its implications for appeals and relief (NGT jurisdiction vs. civil courts) (!) (!) (!) (!) . - It analyzes the appropriateness of granting a simpliciter permanent injunction in a quia timet action concerning environmental projects, emphasizing that the initial burden of proof for actionable nuisance must be discharged and that such preventive injunctions require clear evidence of imminent harm; otherwise relief cannot be granted (Sections discussing Sections 41(f), 41(h) of the 1963 Act and opinion on quia timet) (!) (!) (!) (!) . - The Court sets out that where substantial questions relating to the environment arise, such matters should be transferred to NGT for adjudication, and that pending pre-2010 suits may be subject to transfer as per Bhopal Gas decision guidance (!) (!) (!) .
JUDGMENT
A.M. Khanwilkar, J.
1. Leave granted.
2. This appeal emanates from the judgment and order dated 29.8.2016 passed by the High Court of Judicature at Bombay [For short, “the High Court”] in Second Appeal No. 771/2015, whereby the judgment and decree dated 11.2.2015 passed by the District Judge, Ratnagiri [For short, “the first appellate Court”] in Regular Civil Appeal No. 34/2011 came to be affirmed, as a result of which the suit filed by the respondent Nos. 1 to 19 (original plaintiffs) in the Court of Civil Judge, Senior Division, Ratnagiri [For short, “the trial Court”] being RCS No. 25/2005 for permanent injunction against the appellant and respondent No. 20 (State of Maharashtra), restraining them from starting the Solid Waste Disposal Project [For short, “the 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 Aars. [For short, “the suit land” or “the suit property”], which land had been allotted to the appellant by the State Government. The suit land is located around 10 kms. away from the limits of the Ratnagiri city at a hilly and sloppy area. The entire area is rocky and hard. The location selected for setting up the Project was wholly 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 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 state
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