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1995 Supreme(HP) 46
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Hon'ble Judges: S.N. Phukan, C.J.
Union of India (UOI) and Ors. – Appellants
Vs.
Ganga Singh and Ors. – Respondent
Civil Revision No. 85 of 1995
Decided On: 12.07.1995
For Appellant/Petitioner/Plaintiff: N.K. Sood, Adv.
For Respondents/Defendant: M.C. Mandhotra, Adv. andParty-In-person
A plaintiff seeking an injunction must make out a prima facie case, demonstrate that the balance of convenience favors granting the injunction, and show that they will suffer irreparable harm if the injunction is not granted.
Headnote:
INJUNCTION - WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 - SECTION 24 - CIVIL PROCEDURE CODE, 1908 - ORDER 39, RULES 1 AND 2 - SUIT FOR INJUNCTION TO RESTRAIN DREDGING OF SILT FROM BALANCING RESERVOIR INTO RIVULET - HELD, NO PRIMA FACIE CASE MADE OUT BY PLAINTIFFS - INJUNCTION GRANTED BY LOWER APPELLATE COURT SET ASIDE.
Fact of the Case:
Plaintiffs filed a suit seeking a permanent injunction restraining the defendants from dredging silt and sand into Suketi Khad, alleging that the dredging caused pollution and damaged their agricultural land. The trial court dismissed the plaintiffs' application for an injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure, but the lower appellate court allowed the injunction.
Finding of the Court:
The High Court held that the plaintiffs failed to make out a prima facie case for an injunction. The court noted that the plaintiffs delayed in filing the suit and the injunction petition, that the defendants had taken steps to protect the interests of the local population, and that granting the injunction would cause immense loss to the defendants and the public at large.
Issues: 1. Whether the plaintiffs had made out a prima facie case for an injunction? 2. Whether the balance of convenience favored granting the injunction? 3. Whether the civil court had jurisdiction to hear the suit in light of the provisions of the Water (Prevention and Control of Pollution) Act, 1974?
Ratio Decidendi: 1. The court held that the plaintiffs failed to make out a prima facie case for an injunction because they delayed in filing the suit and the injunction petition, the defendants had taken steps to protect the interests of the local population, and granting the injunction would cause immense loss to the defendants and the public at large. 2. The court held that the balance of convenience favored denying the injunction because granting the injunction would cause immense loss to the defendants and the public at large, while denying the injunction would allow the defendants to continue their dredging operations, which were necessary to prevent damage to the power turbines. 3. The court declined to express an opinion on the issue of the civil court's jurisdiction in light of the provisions of the Water (Prevention and Control of Pollution) Act, 1974.
Final Decision: The High Court allowed the petition, set aside the injunction granted by the lower appellate court, and restored the order of the trial court dismissing the plaintiffs' application for an injunction.
S.N. Phukan, C.J.
1. This revision petition is directed against the order of the learned District Judge, Mandi, dated 18-3-1995 passed in C.M.A. No. 32 of 1993. The present petition has been filed by the Defendants.
2. In the year 1991 the Respondents herein, filed a civil suit before the learned Sub-Judge, Sundernagar, which was registered as suit No. 65 of 1991. Thereafter, in June 1993, an application under Order 39, Rules l and 2 of the Code of Civil Procedure was filed before the learned trial Court, which was dismissed, but by the impugned order the learned lower appellate Court allowed the injunction and the present Petitioner Nos. 2 and 3 were restrained from dredging the silt from Balancing Reservoir at Sunder-nagar in a manner which may load to ingress of silt into the suit land or which may cause obstruction to the Kuhals (water channels) through which water from Suketi-Khad is channalised for irrigation of the suit land or which may render the water drawn for irrigation by the Plaintiffs-Appellants from Suketi Khad polluted with silt till the disposal of the suit. Against the said outer, the present petition has been filed.
3. A copy of the plaint is available at Annexure P-I. The suit was filed by ten persons against the Union of India, Chairman, Bhakra Beas Management Board and the Chief Engineer, Bhakra Beas Management Board, (for short, B.B.M.B.), According to the Plaintiffs, the suit land is being irrigated since time immemorial from the waters of Rivulet Suketi Khad by its owners. The Defendants, namely, B.B.M.B. constructed a Dam at Pandoh, District Mandi, and diverted the water of River Beas through a tunnel from Pandoh in Baggi and an open channel from Baggi to Sundernagar and finally Anr. tunnel from Sundernagar to Slapper and thereafter carried the water of River Beas into the River Sutlej. The Defendants also constructed at Ropa-Sundernagar town a Balancing Reservoir at the tail end of the Baggi-Sundernagar Beas Sutlej Link Open Channel in order to clean the River Beas water to silt and sand. The said Balancing Reservoir is situated at the Head of Rivulet Suketi-Khad, which according to the Plaintiffs irrigates the suit land of the Plaintiffs. It has also been pleaded that the water of River Beas pours down every day "lacks of tonnes of sand and silt" into the above Balancing Reservoir and the Defendants dredge out the accumulated sand and silt from the said Balancing Reservoir into the Rivulet Suketi Khad, which mixes with and flows down with the water of Rivulet Suketi Khad and settles down and accumulates into the suit land of the Plaintiffs. It has also been stated in the plaint that since 1978 the Defendants have started dredging out the silt and sand and caused pollution in Suketi Rivulet with sand and silt and made its water unfit for human or animal use and consumption and also unfit for irrigation. By this process, the Kuhals (Irrigation Channels) are being filled with sand and silt and destroyed the fertility of the suit land since 1978 due to accumulation of sand and silt in the suit land. It is admitted that in July 1988, the Plaintiffs were paid compensation. In the plaint, a decree has been prayed for restoration of the land of the Plaintiffs to its original state prior to 1978 ; perpetual injunction restraining the Defendants from dredging out silt and sand into suketi Khad and also for a preliminary decree to ascertain the compensation due to damage caused to the crops of the Plaintiffs since 1979.
4. It is not necessary for the present purpose to refer the written statement and reference may be made to the facts stated in the present petition. It is stated that Beas Sutlej Link Project was construction for diversion of water of River Beas at Pandoh through a water conductor system so as to generate power at Dehar Power Plant located at Slapper and then at Bhakra The entire B.B.M.B. system comprising the Power Houses at Bhakra, Ganguwal and Kotla, Pong and Dehar, which is a part of t
