TaxTMI 
TaxTMI 
2020 (5) TMI 727
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....eld 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 2H-46 Aars.[5], 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 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. ....
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....nd provide for mechanism to dispose of the same as per the standard protocol. Considering the ill¬effects 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 (Protection) Act, 1986[6], which had already come into force including the Municipal Solid Wastes (Management and Handling) Rules, 2000[7]. 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 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 Of....
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....it property is not convenient for the Solid Waste Disposal and Management Project? 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 o....
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....llagers 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 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 ....
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.... 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 withou....
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....t, 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 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 ....
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....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 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 thei....
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....redicates 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 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....
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....ards the river in the neighbourhood and would be a serious 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 o....
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....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) 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.....
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....ular by the first appellate Court and the 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 o....
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....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. 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 (6t....
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....or the court to grant a declaration. Suffice it to say that filing of a suit for declaration was in the circumstances essential for the plaintiffs. That is 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 (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 ....
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.... quia timet as follows: "There are at least two necessary ingredients for a quia timet action. There must, if no 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 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, howe....
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....e 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 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 appel....