# RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN AMBEKAR & ORS

- **Citation:** [2020] 6 S.C.R. 303
- **Court:** Supreme Court of India
- **Decided:** 2020-05-06
- **Case number:** Civil Appeal No. 2412 of 2020
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ratnagiri-nagar-parishad-v-gangaram-narayan-ambekar-ors-34098
- **Pages:** 29

## Headnote

National Green Tribunal Act, 2010:
s.29 - Bar of jurisdiction of civil court - To cases relating to
environment - Held: After the establishment of the Tribunal under
the Act, civil court is not competent to entertain a suit relating to
environmental issues, in view of s. 29 and the dictum in *Bhopal Gas
Case - Such cause/ action ought to be transferred to the Tribunal
for adjudication.
Specific Relief Act, 1963:
s.41(f) - Injunction - Refusal of - Held: In view of s. 41(f),
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
- In the present case, the civil court was moved challenging the
Project when the Project was at nascent stage.
s. 41(h) - Injunction - Refusal of - Held: When equally
efficacious relief can be obtained by any other usual mode of
proceeding, an injunction cannot be granted - In the present case,
the cause of the plaintiffs could have been addressed to the competent
authorities concerned with the Project.
Relief:
Permanent injunction - Suit for permanent injunction -
Against State authorities - Seeking restraining them from starting
solid waste disposal project - Held: The plaintiff did not challenge
any of the decisions of the competent authority taken with regard to
the Project nor any declaratory relief was sought - Relief of
permanent injunction simpliciter was not enough - Suit should have
been rejected at the threshold - Injunction.
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Evidence:
Burden of proof - to prove actionable nuisance - Held: Initial
burden of proof to substantiate the cause of actionable nuisance is
on the plaintiff - Weakness in the defence cannot be the basis to
grant relief to the plaintiff and to shift burden on the defendants.
Allowing the appeal, the Court
HELD: 1.1 The present suit was filed prior to 2.6.2010
and 18.10.2010 i.e. the dates when the National Green Tribunal
Act, 2010 came into force and the date of establishment of National
Green Tribunal (NGT) respectively. However, it was pending
before the civil court even after the establishment of the Tribunal.
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. That cause
was the foundation for the relief of permanent injunction sought
by the plaintiffs. By virtue of Section 29 and in particular the dictum
in the *Bhopal Gas case, the civil court ought not to have
continued with the suit. It is a different matter that the trial court
chose to dismiss the suit on the finding that the plaintiffs had
failed to substantiate the case set up by them in the plaint. Once
the suit was barred by law, the civil court could not have proceeded
with the suit and at best, the parties could have been relegated
before the NGT, the special forum created by the 2010 Act. Indeed,
the trial court did not have the benefit of the reported decision of
this court. For, the said decision was rendered on 9.8.2012.
However, it is intriguing that even the first appellate court and
the High Court did not think it necessary to advert to the effect
of Section 29 of the 2010 Act and in particular, the decision of
this Court in *Bhopal Gas case. [Para 13][322-B-F]
*Bhopal Gas Peedith Mahila Udyog Sangathan & Ors.
v. Union of India & Ors. (2012) 8 SCC 326 : [2012] 12
SCR 947 - relied on.
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1.2 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 the present 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 in

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[2020] 6 S.C.R. 303
303
RATNAGIRI NAGAR PARISHAD
v.
GANGARAM NARAYAN AMBEKAR & ORS.
(Civil Appeal No. 2412 of 2020)
MAY 06, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
National Green Tribunal Act, 2010:
s.29 - Bar of jurisdiction of civil court - To cases relating to
environment - Held: After the establishment of the Tribunal under
the Act, civil court is not competent to entertain a suit relating to
environmental issues, in view of s. 29 and the dictum in *Bhopal Gas
Case - Such cause/ action ought to be transferred to the Tribunal
for adjudication.
Specific Relief Act, 1963:
s.41(f) - Injunction - Refusal of - Held: In view of s. 41(f),
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
- In the present case, the civil court was moved challenging the
Project when the Project was at nascent stage.
s. 41(h) - Injunction - Refusal of - Held: When equally
efficacious relief can be obtained by any other usual mode of
proceeding, an injunction cannot be granted - In the present case,
the cause of the plaintiffs could have been addressed to the competent
authorities concerned with the Project.
Relief:
Permanent injunction - Suit for permanent injunction -
Against State authorities - Seeking restraining them from starting
solid waste disposal project - Held: The plaintiff did not challenge
any of the decisions of the competent authority taken with regard to
the Project nor any declaratory relief was sought - Relief of
permanent injunction simpliciter was not enough - Suit should have
been rejected at the threshold - Injunction.
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Evidence:
Burden of proof - to prove actionable nuisance - Held: Initial
burden of proof to substantiate the cause of actionable nuisance is
on the plaintiff - Weakness in the defence cannot be the basis to
grant relief to the plaintiff and to shift burden on the defendants.
Allowing the appeal, the Court
HELD: 1.1 The present suit was filed prior to 2.6.2010
and 18.10.2010 i.e. the dates when the National Green Tribunal
Act, 2010 came into force and the date of establishment of National
Green Tribunal (NGT) respectively. However, it was pending
before the civil court even after the establishment of the Tribunal.
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. That cause
was the foundation for the relief of permanent injunction sought
by the plaintiffs. By virtue of Section 29 and in particular the dictum
in the *Bhopal Gas case, the civil court ought not to have
continued with the suit. It is a different matter that the trial court
chose to dismiss the suit on the finding that the plaintiffs had
failed to substantiate the case set up by them in the plaint. Once
the suit was barred by law, the civil court could not have proceeded
with the suit and at best, the parties could have been relegated
before the NGT, the special forum created by the 2010 Act. Indeed,
the trial court did not have the benefit of the reported decision of
this court. For, the said decision was rendered on 9.8.2012.
However, it is intriguing that even the first appellate court and
the High Court did not think it necessary to advert to the effect
of Section 29 of the 2010 Act and in particular, the decision of
this Court in *Bhopal Gas case. [Para 13][322-B-F]
*Bhopal Gas Peedith Mahila Udyog Sangathan & Ors.
v. Union of India & Ors. (2012) 8 SCC 326 : [2012] 12
SCR 947 - relied on.
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1.2 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 the present 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 exposition of this Court that such pending cause/
action ought to be transferred to the NGT for adjudication thereof.
As a concomitant of this conclusion, the findings and conclusions
rendered in favour of the plaintiffs, in particular by the first
appellate Court and the High Court, will be of no avail and in law
stand effaced being without jurisdiction and nullity. [Para
13]
[322-F-H]
2. The plaint as filed by 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.
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. [Paras 14 and 15][323-A-C; 326-G]
Board of Trustees of Port of Kandla v. Hargovind Jasraj
& Anr. (2013) 3 SCC 182 : [2013] 1 SCR 589; Anathula
Sudhakar v. P. Buchi Reddy (D) by LRs. & Ors. (2008)
4 SCC 594 : [2008] 5 SCR 331 - relied on.
RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN
AMBEKAR & ORS.
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3.1 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.
Further, Section 41(f) of the Specific Relief Act, 1963 clearly
mandates that an 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. [Paras 17 and 18][329-G-H; 330-A-B]
3.2 Respondent No. 20 (State of Maharashtra) is right in
contending that the plaintiffs would have equally efficacious relief
by resorting to other mode of proceedings. To wit, when the
proposal regarding setting up of the Project is being finalised
and permissions are granted by the competent authority under
the concerned statutory dispensation, at that time, the affected
parties would be free to make representation which can be
considered by the competent authority appropriately. Hence, the
civil Court ought not to have granted injunction simpliciter also
because of the stipulation in Section 41(h) of the 1963 Act, wherein
it is made amply clear 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.
The scheme of Section 41 of the 1963 Act predicates that the
civil Court must refuse to grant injunction in the situations
referred to therein vide clauses (a) to (j). The Court could not
have answered the matter in issue on the basis of assumptions
and conjectures, much less unsubstantiated claim of the plaintiffs.
[Para 18][330-C-F]
4. It is manifest that the trial Court had opined that the
plaintiffs failed to substantiate the case set out in the plaint
regarding the actionable nuisance. The trial Court justly analysed
the evidence of the plaintiffs in the first place to answer the
controversy before it. The first appellate Court, however, after
adverting to the oral and documentary evidence produced by the
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parties, proceeded to first find fault with the evidence of the
defendants to answer the controversy in favour of the plaintiffs.
The first appellate Court committed palpable error in not keeping
in mind that the initial burden of proof was on the plaintiffs to
substantiate their cause for actionable nuisance, which they had
failed to discharge. In such a case, the weakness in the defence
cannot be the basis to grant relief to the plaintiffs and to shift the
burden on the defendants, as the case may be. Thus understood,
the findings and conclusions reached by the first appellate Court
will be of no avail to the plaintiffs. [Para 16][327-A-C]
Kuldip Singh v. Subhash Chander Jain & Ors. (2000)
4 SCC 50 : [2000] 2 SCR 639 - relied on.
5. The civil suit, as filed by respondent Nos. 1 to 19
(plaintiffs) ought to have been dismissed, as was rightly done by
the trial Court. Indeed, the dismissal of the 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. [Para 19][330-G-H]
Case Law Reference
[2012] 12 SCR 947
relied on
Para 12
[2013] 1 SCR 589
relied on
Para 14
[2008] 5 SCR 331
relied on
Para 14
[2000] 2 SCR 639
relied on
Para 17
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2412
of 2020.
From the Judgment and Order dated 29.08.2016 of the High Court
of Judicature at Bombay in Second Appeal No. 771 of 2015.
Somiran Sharma, Rakesh Bhatkal, Advs. for the Appellant.
Nachiketa Joshi, Sandeep Deshmukh, Ms. Sucheta Joshi,
Ms. Himadri Haksar, Vipul Tiwari, Sachin Patil, Rahul Chitnis, Aaditya
Pandey, Advs. for the Respondents.
RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN
AMBEKAR & ORS.
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The Judgment of the Court was delivered by
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 Bombay1 in Second
Appeal No. 771/2015, whereby the judgment and decree dated 11.2.2015
passed by the District Judge, Ratnagiri2 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. 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 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. Thus, the Project is likely to pollute the Dam water as well. It is
1 For short, "the High Court"
2 For short, "the first appellate Court"
3 For short, "the trial Court"
4 For short, "the Project"
5 For short, "the suit land" or "the suit property"
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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 statement and refuted every assertion
in the plaint about the possible environmental fallout due to setting up of
the Project at the stated location. The appellant asserted that the land
belonged to the State Government and only after due consultation and
deliberations with all concerned, it has been allotted to the appellant for
setting up of the Project thereat. Further, the necessity of setting up
such a project need not be underscored. It is a statutory obligation of the
appellant and also necessitated on account of directions issued by the
Court in public interest litigation in that regard. The appellant is obliged
to collect solid waste on daily basis from the localities within the District
(Ratnagiri) and 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, 19866, which had
6 For short, "the 1986 Act"
RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN
AMBEKAR & ORS. [A. M. KHANWILKAR, J.]
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already come into force including the Municipal Solid Wastes
(Management and Handling) Rules, 20007. 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
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 assertions in the plaint and
called upon the plaintiffs (respondent Nos. 1 to 19) to substantiate the
relevant facts stated therein. The appellant had specifically denied that
the Project would be set up on the slope, as suggested in the plaint.
Further, it is asserted that no waste, which will become rotten and wet
or polluted water will be allowed to flow from the suit land. These
precautions will be taken without exception and stringent conditions will
be prescribed as is evident from the official records. In other words, the
plaintiffs have made irresponsible and frivolous statements in the plaint
without any basis to substantiate the same. According to the appellant,
the suit was politically motivated. The appellant specifically asserted
that the Project site was yet to be finalised by the appellant and would
abide strictly by the recommendations of the experts providing for
stringent conditions. The appellant asserted that because of the pendency
of the suit proceedings, necessary permissions and clearances from the
competent authority under the environment laws could not be pursued
further. It is thus stated that the Project would be set up only after such
7 For short, "the 2000 Rules"
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permissions are granted and would be implemented under the strict
supervision of the concerned authorities. The appellant also stated that
the suit was not maintainable and ought to be dismissed with costs.
5. On the basis of rival stand, the trial Court framed six issues for
determination as follows: -
Issues
1. Whether the Plaintiffs have established that the disputed Solid Waste
Disposal and Management project is harmful to the health of the citizens
of the Panchkrosh?
2. Whether the Plaintiffs have established that the suit 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 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, therefore,
proceeded to dismiss the suit filed by the respondent Nos. 1 to 19 by
concluding thus: -
RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN
AMBEKAR & ORS. [A. M. KHANWILKAR, J.]
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"15. In the present case, the Plaintiffs have not given the strong
proof for establishing that there is residential colonies near the
Proposed project. In the same way, they have not established the
manner in which water pollution will be caused due to the proposed
project. For the purpose of establishing that there will be water
pollution due to the proposed project, it was necessary for the
Plaintiffs to establish the so called Plan of the flow of Dandeadom
river. For the purpose of establishing that there will be water
pollution due to the project, it was necessary for the plaintiffs to
give evidence of expert persons. The Plaintiffs have admitted in
their cross examination that they have taken personal information
of the solid Waste Project. The allegations made in the suit by the
plaintiff seems to be their personal opinion. In the same way, it
becomes clear that there is no scientific base to their opinion. As
the Plaintiffs have established that there will be the alleged pollution
in future, the question of giving the permanent injunction does not
arise. The plaintiffs have not established that their legal right has
been neglected. The Plaintiffs have not given prima facie evidence
for giving the permanent injunction.
11. The answer of issues No. 1 to 4 is being given in the negative
and the Order is being made as under:
O R D E R
1. Suit is being dismissed with costs.
2. Decree may be made accordingly."
6. The matter was carried in appeal by the respondent Nos. 1 to
19/plaintiffs. The first appellate Court after adverting to the rival
contentions formulated following points for its consideration: -
Points
1. Whether the suit solid waste and Management Project is injurious to the
health of villagers 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?
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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 city
there is a collection of 15 to 16 trucks solid waste per day. If such
a huge wastage is going to be stored on the suit property, which is
having slope towards river, then, definitely it will pollute river water.
Because the plaintiffs have specifically pleaded and deposed that
in the Konkan Region there is rain fall of 120 to 130 inch per year
in rainy season. A judicial note can be taken of this fact that there
is heavy rain fall in Konkan region in every rainy season. If such
a huge wastage is going to be stored on the suit property, then
definitely it will be flown into river because of slope and because
of the heavy rain fall. If such a wastage will be flown into river
water, because of its decomposition, it will be fermented and it
will definitely pollute the river water. Admittedly river water flows
from various villages and Dandeadam river joins with Sheel river
within vicinity of Fansavale village. Admittedly dam is constructed
over Sheel river from which there is water supply to Ratnagiri
city. If such river waste is polluted due to the solid waste storage,
then the entire water in Sheel dam will also be polluted and it will
result ultimately causing danger to the life and health of citizens
of Ratnagiri city and citizens of the vicinity. Therefore, the oral
evidence of plaintiffs shows that the proposed project is dangerous
for the life and health of the citizens, so also the suit property is
not suitable and convenient for the proposed project."
RATNAGIRI NAGAR PARISHAD v. GANGARAM NARAYAN
AMBEKAR & ORS. [A. M. KHANWILKAR, J.]
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The first appellate Court then adverted to the documentary
evidence on record and opined as follows: -
"31. It reveals from over all careful scrutiny of the documentary
evidence produced by both the parties that, the defendants are
not coming before the Court with clean hands. Because the
documentary evidence produced on record by both the parties
clearly shows that previously S.No. 137/16 situated at village
Kasop was acquired for the project of solid waste management,
but, that project was cancelled and 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 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 solid waste daily from
Ratnagiri to suit property by trucks, then per year the defendant
No. 1 has to spend lacs [sic.] of rupees for payment of trucks
transportation charges. This also shows that the suit property is
not suitable for solid waste management. Moreover, as per the
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evidence of D.W. 1 that the vehicles used for transportation of
solid waste are open. As per the Municipal Solid Waste
(Management and Handling) Rule, 2000 (hereinafter called as
the Rule) clause 4 of Schedule 2 shows that, "Vehicles used for
transportation of wastage shall be covered. Wastage should not
be visible to public nor exposed to open environment preventing
their scattering." Therefore, this Rule shows that open vehicles
can not be used for transportation of solid waste, but, here as per
the admissions given by D.W. 2 open vehicles are being used. If
such open vehicles carries solid waste upto the suit property, then
again it will cause scattering of waste and it will cause pollution.
33. The plaintiffs have specifically proved that the suit property is
situated in hilly area having sheer slope towards a river, which is
situated at the bottom of the slope. In this respect, it is pertinent to
note here the provision of the Rules. The defendant No. 1 have
itself produced Municipal Solid Wastes (Management and
Handling) Rules, 2000 at Exh. 125. After perusal of these Rules,
it reveals that, certain guidelines in these Rules for selection of a
property for such a Solid Wastes Project. Schedule 3 of these
Rules deals with Site selection. Clause 8 of Schedule 3 shows
that, "the landfill site shall be away from water bodies." Here it is
necessary to reproduce Clause 8 of Schedule 3 of ready reference.
It is as under,
"Schedule 3(8) - The Landfill site shall be away from habitation
clusters, forest areas, water bodies, monuments, National Parks,
Wetlands and places of important cultural, historical or religious
interest."
34. This clause 8 clearly indicates that, 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
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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 of the public. It is a constitution
right of every citizen to get unpolluted air, water and environment.
Right to life is provided under Article 21 of the Constitution of
India. Project are being made for the welfare of public and not
for causing danger to their health and life. For the reason stated
above, if the project will be made on the suit property, then the
[sic] water will be polluted and it will cause definitely an [sic]
interference in the lawful rights of plaintiffs to get unpolluted water
and environment. Under such circumstances, I find substances in
the submissions of Ld. Advocate for the plaintiff and I record my
findings to points No. 1 and 3 in the affirmative, point no. 2 in the
negative."
On the basis of the aforesaid conclusions, the first appellate Court
passed the following order to decree the suit filed by respondent Nos. 1
to 19: -
"O R D E R
1. The appeal is allowed with costs.
2. The judgment and decree passed by Ld. Trial Court dated
31.01.2011 is hereby set aside.
3. the suit bearing Regular Civil Suit No. 25/2005 is decreed as
under:
(a) The defendants and their representative are hereby
perpetually prohibited from starting proposed Solid Waste
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(Management and Handling) Project on the suit property i.e.
Gat No. 219 of village Dandeadam.
4. Decree be drawn accordingly."
7. Feeling aggrieved, the appellant carried the matter by way of a
Second Appeal before the High Court. The High Court after adverting
to the findings and conclusions recorded by the first appellate Court,
opined that the same did not warrant any interference, not being perverse
and being based on oral and documentary evidence. In its opinion,
therefore, no substantial question of law arose for consideration. The
High Court observed thus: -
"11. In my view, the defendant has failed to produce any competent
witness before the learned trial judge to prove that if the project
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 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
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cannot be countenanced. It was a speculative suit and the plaintiffs having
failed to discharge their initial burden of proof, no relief could be granted.
The Project has been conceived after due deliberations by the competent
authorities and on the basis of opinion given by the experts in that regard.
Further, the Project will be fully compliant with all stipulations for
preserving environment and obviating even the slightest possibility of
causing pollution in the neighbourhood. The land has been identified as
an ideal land for the proposed Project by the experts and the State
Government had also accorded approval by allotting the same to the
appellant for the stated purpose. The approach of the first appellate
Court is completely unacceptable, as it has failed to first examine the
adequacy of the evidence given by the plaintiffs and to ascertain whether
the plaintiffs had discharged their initial burden of proof at all. However,
the first appellate Court chose to first examine the evidence of the
defendants (appellant and respondent No. 20), that too selectively, and
misread the same out of context to form its opinion and also took judicial
notice of irrelevant facts - which is nothing short of being replete with
conjectures and surmises. The High Court fell in error in not entertaining
the second appeal despite such manifest and cardinal infirmities committed
by the first appellate Court.
9. The respondent No. 20 - State of Maharashtra has supported
this appeal. It is urged by the State that the subject suit was completely
premature, as only site for the Project is identified. The suit is based on
speculations and misplaced assumptions that if the Project is installed at
the identified location, it would discharge waste and permit flow of polluted
water directly into the river. There is no actual basis for such assumption.
It is urged that the civil/trial Court could not have granted injunction not
only on account of Section 41(f) of the Specific Relief Act, 19638, which
predicates 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
8 For short, "the 1963 Act"
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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 Tribunal9 under the National Green Tribunal
Act, 201010. 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 the decision regarding suitability of the subject land has
been taken by the Municipal Solid Waste Committee being the expert
body in that regard. Even that decision has not been assailed nor the
concerned authorities including the Pollution Control Board have been
made party to the suit. It is urged that the site has a separate approach
road available to transport the solid waste and the assertion made by the
plaintiffs to the contrary is mischievous and false. The State has also
urged to allow this appeal and to set aside the decree passed by the first
appellate Court, as confirmed by the High Court vide impugned judgment.
10. Per contra, the respondent Nos.