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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.