Holding

The suit was premature; no actionable quia timet action existed and a preventive injunction could not be granted.

Summary

The plaintiffs, neighbours in a residential area of Ludhiana, sued the defendant who had constructed a bhatti (baking oven) and sought a preventive injunction to stop its operation and to restrain the Municipal Corporation from granting a licence under the Punjab Municipal Corporation Act. The trial court granted the injunction against the defendant, but the licence had already been issued. On appeal, the Additional District Judge held the locality was not purely residential and dismissed the suit, a decision later reversed by the High Court. The Supreme Court held that the suit was premature; no quia timet action existed because the bhatti was not operational and the alleged nuisance was not imminent or irreparable. Consequently, a preventive injunction could not be granted. The Court also affirmed that the Municipal Corporation’s statutory power to grant licences could not be restrained by a civil suit, and the plaintiffs could only seek cancellation of the licence through the appropriate statutory remedies. The appeal was allowed and the decree against the defendant was set aside, with liberty to file a fresh suit if actual injury or imminent danger is proved.

Issues considered

Whether a quia timet action for a future private nuisance is maintainable when the alleged nuisance is not yet operational.
Whether a preventive injunction can be granted to restrain the operation of a bhatti in a residential locality absent proof of imminent and irreparable harm.
Whether the Municipal Corporation can be enjoined from exercising its statutory power to grant a licence under the Punjab Municipal Corporation Act, 1976.
Whether the character of the locality (purely residential or mixed) affects the claim of nuisance.

Legislation cited

Punjab Municipal Corporation Act, 1976s. 342

Subjects

private nuisancefuture nuisancequia timetpreventive injunctionmunicipal licenceresidential localitystatutory functioncivil procedure

Judgment

KULDIP SINGH A
v.
SUBHASH CHANDER JAIN AND ORS.

MARCH 28, 2000

[A.P. MISRA AND R.C. LAHOTI, JJ.] B

Injunction-Suit for preventive injunction-To restrain defendant from
operating a bhatti (baking oven) in· residential area-Trial Court granting
relief-Appellate coun after carrying out local inspection dismissed suit
holding that locality was not a purely residential one and operation of bhaJti C
was not likely to cause any actionable nuisance-High Court restoring
judgment and decree of trial court-Held, suit .filed by plaintiffs was prema-
ture-No preventive injunction could have been allowed to plaintiffs.

Torts: Private nuisance-Future nuisance-Quia timet action-Suit for
injunction against an apprehended injury likely to be cause by operation of a D
bhatti (baking oven)-Bhatti not operational on date offiling of suit-Held, a
mere possibility ofinjury will not pmvide plaintiff with a cause of action unless
threat be so certain or imminent that an injury actionable in law will arise if'
not prevented by an action-On facts, no case for quia timet action made out-
Quia timet action-Explained. E
Punjab Municipal Corporation Act, 1976 :

S.342-Municipal Corporation-Grant of licence for operating a bhatti
(baking oven)-Bhatti proposed to be nm in residential area-Suit filed seeking
injunction to restrain the Corporal ion from granting licence-Held, grant o.f p
licence is a statutory function to be discharge by Municipal Corporation-
Pending suit licence having already been issued to defen:dant, plaintiffs are at
liberty to approach the CorporaJion and seek cancellation of licence by making
out a case.

Respondents No. 1 to 3 ·filed a suit for injunction against their neigh- G
hour (appellant/defendantN?· 1) restraining him from running/operating a
bhatti (baking oven) as it was constructed and proposed to he run in
residential area. They also prayed for a injunction against the Municipal
Corporation restraining it from issuing the licence sought for by defendant
No. 1. However, during pendency of the suit, licence was granted to defend- H
639
640 SUPREME COURT REPORTS [2000] 2 S.C.R.
A ant no. 1 under S. 342 of the Punjab Municipal Corporation Act, 1976. The
trial court dismissed the suit against the Municipal Corporation, but de-
creed it against defendant No. 1 holding that the b/zatti was proposed to be
run in a locality which was purely residential having been so earmarked in
the town planning scheme and that the bhatti would result in emitting smell
and generating heat and smoke which taken together would amount to
B
nuisance. On an appeal filed by defendant No. 1, the Additional District
Judge carried out a local inspection and dismissed the suit holding that the
locality was not a purely residential one as other commercial activities were
also being carried on there; and that operation of the bhatti was not likely to
cause any such nuisance which could be termed actionable. The second
c appeal filed by the plaintiffs was allowed by the High Court. It upheld the
view of the trial court, and restored the judgment and decree passed by it.
Aggrieved, defendant No. 1 filed the present appeal.

It was contended for the appellant that the action initiated by the
plaintiffs was quia timet action; since they were seeking injunction against
D an apprehended injury likely to be caused by nuisance not it existence on
the date of the suit, in the fact and circumstances of the case such an
injunction could not have been granted.

Allowing the appeal, the Court
E HELD: 1.1. The suit filed by the plaintiffs was premature. No case
for quia timet action was made out. No relief much less by way of preventive
injunction, could have been allowed to the plaintiffs. [646-G]

1.2. 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
F
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 inter-
fere by appointment of receiver or by directing security to be furnished or
by issuing an injunction or any other remedial process. [644-G-H]

G Fletcher v. Bealey, 28 Ch.D. 698, referred to.

1.3. A nuisance actually in existence stands on a different footing than
a possibility of nuisance or 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 if it is not
H prevented by an injunction. A future nuisance to be actionable must be
KULDIP SINGH v. S.C. JAIN 641
either imminent or likely to cause such damage as would be irreparable A
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. [645-F-H]

1.4. 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 B
which 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 .. H the
injury is continuous the Court will not refuse an injunction because the c
actual damage arising from it is slight. [646-B]

Ratanlal & Dhirajlal's Law of Torts, edited by Justice G.P. Singh,
Twenty-Second edition pp. 522, referred to.

1.5. In the present case it is not disputed that the bhatti was not opera- D
tional on the date of filing of the suit. A bhatti 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 has become opera-
tional would pose such an injury as would be irreparable or would be inca-
pable 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
E
injury, if any, caused or likely to be caused to the plaintiffs. The findings
recorded by the High Court in this regard 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 wit-
nesses stating that bhatti emits smoke, heat and smell which statements would F
be mere ipse dixit of the witnesses. There .is no foundation either in plead-
ings or in evidence for observation made by the High Court as to gases, ash
etc. emitting from the furnace. The suit as filed by the plaintiffs stands dis-
missed. However, such dismissal shall not prejudice the right of the plain-
tiffs/respondents to bring another action and seek an appropriate r:eliefby G
making out a case of actual injury or imminent danger. [646-D-F; 647-D]

2. Insofar as Municipal Corporation is concerned, the dismissal of
the suit against it 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 H
642 SUPREME COURT REPORTS [2000] 2 S.C.R.
A Municipal Corporation to defendant No. 1 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 within the framework of the legal provisions govern-
()
I

ing the grant and renewal of such licence. [646-H; 647-A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4479of1989.

From the Judgment and Order dated 14.12.83 of the Punjab and
Haryana High Court in RS.A. No. 118 of 1982.

V.M. Tarkunde, Ashok Sen, Jaspal Singh, V.R. Reddy, R.S. Sodhi, Mrs.
c Urmila Kapoor, Ms. S. Janani, S.L. Aneja, Lokesh Kumar, M.K. Garg and Ms.
Rukhsana Choudhury for the appearing parties.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. Plaintiffs/respondents no. 1 to 3 and defendant no. I/
D 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
E 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 Municip~ Corporation to the appellant. By its judgment and decree
dated 3-3-1981 the Trial Court dismissed the suit against the Municipal
F
Corporation forming an opinion that inasmuch 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
G defendant no. I 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. l/
appellant is concerned, the Trial Court was of the opinion that the bhatti was
H proposed to be run in a locality which was purely residential having been so
KULDIP SINGH v. S.C. JAIN [R.C. LAHOTI, J.] 643
ear-marked in the town planning scheme also and further the operation of A
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. Accord-
ingly, the suit was decreed against the defendant no.1/appellant injuncting him
B
from running the bhatti.

Tue defendant no. l 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 c
himself carried out an inspection of the bhatti constructed by the defendant
No. l. 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 bum 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 ta
cause any inconvenience to others. In the opinion of the learned Additional D
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
E
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 carrymg out an inspection of the
defendant no. l's 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, F
heat and smell which were nuisance to the residents of the locality. The High
Com.t also refen-ed 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
G
clearly stated that the Bhatti 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 indusuial
installations from the health point of view and had infmmed Kuldip H
644 SUPREME COURT REPORTS [2000] 2 S.C.R.
A 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 Bhatti had caused nuisance to the residents of the
locality.
B
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,
I
gases and ash etc., which would be emitted from the furnace, would
c certainly be a nuisance to the residents of the locality and if that is
so, no burning of fire-wood etc. would be pennitted 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
D defendgmt No. l has come up in appeal by special leave to this Court.

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 plaintiffs/respondents they were seeking an injunction against an
apprehended injury likely to be caused by nuisance not in existence on the date
E of the suit which injunction could not have been granted in the facts and
circumstances of the case. In his submission the action initiated by the
plaintiffs/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
F attention to Fletcher v. Sealey, 28 Ch.D.698 which in his submission is the
leading authority on tl1e point. Shri V.R. Reddy, learned Senior Counsel for
the plaintiff/respondents has, on the other hand, supported the judgment of the
High Court. I
A quia timet action is a bill in equity. It is an action preventive in nature
G 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 Co~, if convinced, may interfere I
by appqintment of receiver or by directing security to be furnished or by
issuing an injunction or any other remedial process. In Fletcher v. Bealey, Mr.
\
H Justice Pearson explained the law as to actions quia timet as follows :- '
' •,

'/.
KULDIP SINGH v. S.C. JAIN [R.C. LAHOTI, J.] 645
"There are at least two necessary ingredients for a Quia timet action. A
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
B
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 c
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 D
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
E
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 of being assessed in terms of its quantum and the relief
which will protect or compensate the plaintiff consistently with the injury F
caused to his rights is also capable of being formulated. In case of a future
nuisance, a mere possibility of ~jury will not provide the plaintiff with a cause
of action unless the threat be so certain or imminent that an injury actionable
in Jaw 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 G
( 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 highw'1y or H
646 SUPREME COURT REPORTS [2000] 2 S.C.R.
A in the vicinity of a children's 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
B 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 & Dhirajlal's Law of Torts, edited by Justice
c 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 dangerom~ or injurious. It cannot also be said
that the bhatti merely because it has been constructed or become operational
D 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 n<;>t 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
E
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,
F 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,
G 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 herein above. )

Insofar as Municipal Corporation is concerned, the dismissal of the suit
H against it by the Trial Court was not challenged by the plaintiffs by filing an
KULDIP SINGH v. S.C. JAIN [R.C. LAHOTI, J.] 647
appeal. Grant of licence is a statutory function to be discharged by the A
Municipal Corporation. The licence having already been issued by the
Municipal Corporation to the defendant no. I/appellant, the Trial Court rightly
observed that the plaintiffs were at liberty to approach the Municipal Corpo-
ration 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
B
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 frame-
work of Punjab Municipal Corporation Act or such other remedy as may be
available to them in accordance with law. c
The appeal is allowed. The judgment and decree passed by the Ttial
Court and restored by the High Court against defendant No. I/appellant are set
aside. The suit filed by the plaintiffs/respondents against the defendant no. l/
appellant is directed to be dismissed. However, such dismissal shall not
prejudice the right of the plaintiffs/respondents to bring another action and D
seek an appropriate relief by making out a case of actual injury or imminent
danger. No order as to the costs.

R.P. Appeal allowed.