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PETITIONER: KULDIP SINGH

       Vs.

RESPONDENT: SUBHASH CHANDER JAIN & ORS.

DATE OF JUDGMENT:       28/03/2000

BENCH: A.P.Misra, R.C.Lahoti

JUDGMENT:

     R.C.  Lahoti, J.

     Plaintiff/respondents  no.   1  to   3  and  defendant no.1/appellant are neighbours having their properties in the city  of  Ludhiana.  Sometime in the month of August,  1978, the  appellant  constructed  a bhatti (baking oven)  in  his premises.   He  also moved an application to  the  Municipal Corporation  of Ludhiana seeking grant of licence to run the bakery.   The  plaintiffs raised a protest and then filed  a suit seeking an injunction against the appellant restraining him   from  running/operating  the   bhatti,  and  also   an injunction  against the Municipal Corporation restraining it from  issuing  the  licence  sought for  by  the  appellant. During  the  pendency of the suit the licence under  Section 342  of  the  Punjab  Municipal Corporation  Act,  1976  was granted  by the Municipal Corporation to the appellant.   By its  judgment  and  decree dated 3-3-1981  the  Trial  Court dismissed the suit against the Municipal Corporation forming an  opinion that in as much as the licence had already  been issued  the prayer for the grant of preventive injunction in that   regard  was  rendered   infructuous,  also  that  the Municipal  Corporation could not be restrained by the  Civil Court  from  exercising  a  statutory power  by  issuing  an injunction.   The  Trial  Court also observed  that  if  the operation  of  bhatti by the defendant no.1 was a source  of nuisance  to  the  neighbours  or   any  other  persons,  an objection  could be raised before the Municipal Commissioner who could either cancel the licence already granted or could refuse  to  renew  the same further.  So far as  the  relief sought   for  against  the   defendant   No.1/appellant   is concerned,  the  Trial  Court was of the  opinion  that  the bhatti was proposed to be run in a locality which was purely residential  having been so ear-marked in the town  planning scheme also and further the operation of bhatti would result in  emitting smell and generating heat and smoke which taken together would amount to nuisance and so the plaintiffs were entitled  to  issuance  of  an  injunction  restraining  the defendant  No.1/appellant  from  running   the  bhatti   for manufacturing  bakery  products in his house.   Accordingly, the  suit  was decreed against the defendant  no.1/appellant injuncting him from running the bhatti.

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     The  defendant  no.1  preferred an appeal  before  the Additional  District  Judge who formed an opinion  that  the locality  was  not purely a residential one as a  few  other commercial  activities  were  also being carried on  in  the vicinity  of  the  premises belonging to the  parties.   The learned  Additional  District Judge himself carried  out  an inspection  of the bhatti constructed by the defendant No.1. He  found  that there was a chimney installed in the  bhatti which  was  about 12 feet in height.  The designing  of  the bhatti revealed that the fire-wood would burn in between two parallel  brick-linings and the heat generated by burning of the fire- wood would not travel much beyond the bhatti so as to cause any inconvenience to others.  In the opinion of the learned  Additional  District  Judge the  operation  of  the bhatti was not likely to cause any such nuisance which could be  termed  actionable.   On such findings  the  appeal  was allowed setting aside the decree passed by the Trial Court.

     The plaintiffs preferred second appeal before the High Court.  The learned Single Judge who heard the second appeal felt  not happy about the learned Additional District  Judge having  disposed of the appeal basing the judgment mostly on the  opinion  formed  by carrying out an inspection  of  the defendant  no.1s premises.  Without discussing the evidence in  details,  the  High Court made an observation  that  the plaintiff  Subhash  Chander,  PW-1,   and  other   witnesses produced by him had stated that the bhatti would emit smoke, heat  &  smell which were nuisance to the residents  of  the locality.    The  High  Court   also  referred  to   certain correspondence   exchanged  between   the  district   health authorities  and the Municipal Corporation.  The High  Court observed  :-  .  I find that the statements  of  Subhash Chander,  plaintiff (P.W.1) and other witnesses produced  by him, are reliable.  They have clearly stated that the Bhathi emits  smoke,  heat  and  smell which are  nuisance  to  the residents  of  the  locality.    Even  the  Municipal/Health Authorities  as  also  the   District  Health   Authorities, Ludhiana  have reported that the residential locality cannot be  used for industrial installations from the health  point of  view and had informed Kuldip Singh not to run the bakery in  the locality in dispute.  Taking all this evidence  into consideration,  I  am of the considered view that the  trial Court  was  perfectly justified in coming to the  conclusion that the setting up of the Bhathi had caused nuisance to the residents of the locality.

     The evidence led by Kuldip Singh defendant shows that the fire place and furnace have been made of such bricks and material  that  it would not emit or spread heat.   Assuming that  heat  would  not  be nuisance of that  degree  to  the residents  of  the  locality, but the smoke, gases  and  ash etc.,  which  would  be  emitted  from  the  furnace,  would certainly be a nuisance to the residents of the locality and if  that  is  so,  no burning of fire-wood  etc.   would  be permitted in the bhatti.

     The  High  Court  set aside the  judgment  and  decree passed  by  the  first appellate Court  and  restored  those passed by the Trial Court.  The aggrieved defendant No.1 has come up in appeal by special leave to this Court.

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     We  have  heard the learned Counsel for  the  parties. Shri  Jaspal Singh, learned Senior Counsel for the appellant has   submitted   that   in   the    suit   filed   by   the plaintiff/respondents   they  were   seeking  an  injunction against  an  apprehended  injury  likely  to  be  caused  by nuisance  not  in  existence on the date of the  suit  which injunction  could  not  have  been granted in  the  facts  & circumstances  of  the case.  In his submission  the  action initiated by the plaintiff/respondents was quia timet action which, on the settled legal principles, was premature on the date  of  initiation  and  hence  ought  not  to  have  been entertained.   The  learned  Counsel for the  appellant  has invited  our  attention to Fletcher v.  Bealey  28  Ch.D.698 which  in  his  submission is the leading authority  on  the point.   Shri  V.R.  Reddy, learned Senior Counsel  for  the plaintiff/respondents  has, on the other hand, supported the judgment of the High Court.

     A  quia  timet action is a bill in equity.  It  is  an action  preventive  in nature and a specie of  precautionary justice intended to prevent apprehended wrong or anticipated mischief  and  not to undo a wrong or mischief when  it  has already  been  done.   In  such  an  action  the  Court,  if convinced,  may  interfere by appointment of receiver or  by directing  security  to  be  furnished   or  by  issuing  an injunction  or  any other remedial process.  In Fletcher  v. Bealey, Mr.  Justice Pearson explained the law as to actions 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.

     Kerr  on Injunctions (Sixth Edition, 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, however,  must  show a strong case of probability  that  the apprehended  mischief will in fact arise in order to  induce the Court to interfere.  If there is no reason for supposing that  there is any danger of mischief of a serious character being  done  before  the interference of the  Court  can  be invoked, an injunction will not be granted.

     In our opinion a nuisance actually in existence stands on  a different footing than a possibility of nuisance or  a future  nuisance.  An actually existing nuisance is  capable

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of  being  assessed in terms of its quantum and  the  relief which  will protect or compensate the plaintiff consistently with  the  injury  caused to his rights is also  capable  of being  formulated.   In  case of a future nuisance,  a  mere possibility  of injury will not provide the plaintiff with a cause  of action unless the threat be so certain or imminent that an injury actionable in law will arise unless prevented by  an  injunction.   The  Court may not  require  proof  of absolute certainty or a proof beyond reasonable doubt before it may interfere;  but a strong case of probability that the apprehended mischief will in fact arise must be shown by the plaintiff.    In  other  words,  a  future  nuisance  to  be actionable  must be either imminent or likely to cause  such damage  as would be irreparable once it is allowed to occur. There  may  be  yet another category  of  actionable  future nuisance  when the likely act of the defendant is inherently dangerous  or  injurious  such as digging a ditch  across  a highway or in the vicinity of a childrens school or opening a shop dealing with highly inflammable products in the midst of a residential locality.

     The nuisance complained of by the plaintiffs and which was  yet  to accrue was to fall in the category  of  private nuisance.   The  remedies  for   private  nuisance  are  (1) Abatement,  (2)  Damages, and (3) Injunction.  In  order  to obtain  an  injunction  it  must be shown  that  the  injury complained  of as present or impending is such as by  reason of  its gravity, or its permanent character, or both, cannot be  adequately  compensated  in damages.  If the  injury  is continuous  the Court will not refuse an injunction  because the  actual  damage  arising from it is slight  (Ratanlal  & Dhirajlals  Law  of Torts, edited by Justice  G.P.   Singh, Twenty-Second edition, pp.  522-524).

     In  the  case  at hand, it is not  disputed  that  the bhatti  was  not  operational on the date of filing  of  the suit.   A  bhatti (baking oven) is not an activity which  by itself  is illegal or inherently dangerous or injurious.  It cannot  also  be said that the bhatti merely because it  has been  constructed  or become operational would pose such  an injury  as  would  be irreparable or would be  incapable  of being  taken  care  of  by  a process  known  to  law.   The pleadings raised by the plaintiffs do not and could not have set  out the nature and extent of injury, if any, caused  or likely  to be caused to the plaintiffs.  The High Court  has at  one  place observed that the bhatti would  emit  smoke, heat  and smell which would be 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 a guess work.   A  clear finding  as  to  nuisance could not have  been  recorded  by basing  it  on generalised statements of  certain  witnesses stating  that  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

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consistently with the observations made herein above.

     In  so far as Municipal Corporation is concerned,  the dismissal  of the suit against it by by the Trial Court  was not challenged by the plaintiffs by filing an appeal.  Grant of  licence is a statutory function to be discharged by  the Municipal  Corporation.   The  licence having  already  been issued  by  the  Municipal   Corporation  to  the  defendant no.1/appellant,  the  Trial Court rightly observed that  the plaintiffs  were  at  liberty  to  approach  the   Municipal Corporation  and  seek cancellation of licence or  pray  for withholding the renewal thereof by making out a case for the grant  of  such  relief within the framework  of  the  legal provisions  governing the grant and renewal of such licence. Needless  to  say,  in  the event of  the  plaintiffs  being illegally  or  unreasonably denied relief by  the  Municipal Corporation,  they would be at liberty to pursue the  remedy of  appeal  or approach the superior authorities within  the framework  of Punjab Municipal Corporation Act or such other remedy as may be available to them in accordance with law.

     The appeal is allowed.  The judgment and decree passed by  the  Trial Court and restored by the High Court  against defendant  No.1/appellant are set aside.  The suit filed  by the    plaintiffs/respondents    against    the    defendant no.1/appellant  is directed to be dismissed.  However,  such dismissal   shall   not   prejudice   the   right   of   the plaintiffs/respondents  to bring another action and seek  an appropriate  relief by making out a case of actual injury or imminent danger.  No order as to the costs.