Ratnagiri Nagar Parishad vs Gangaram Narayan Ambekar & Ors.

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.

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.

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 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]