Remedies under Specific Relief Act

In one minute

Damages repay a victim for harm already done. They do not stop a polluter who keeps polluting. The Specific Relief Act, 1963 gives the remedy that does: an injunction, which is a court order to stop an act or to do an act.

Know sections 36 to 42: the kinds of injunction, damages with or instead of an injunction, and the cases where an injunction is refused.

Legal provision

• Section 36: preventive relief is granted at the discretion of the court, by injunction, temporary or perpetual.
• Section 37: temporary injunctions last until a specific time or further order. They may be granted at any stage of a suit and are regulated by the Code of Civil Procedure, 1908. A perpetual injunction can be granted only by a decree made at the hearing, on the merits.
• Section 38: a perpetual injunction may be granted to prevent breach of an obligation in the plaintiff's favour. Where the defendant invades or threatens to invade the plaintiff's right to or enjoyment of property, it may be granted in four cases.
• Section 39: where it is necessary to compel certain acts, which the court can enforce, the court may grant an injunction to prevent the breach and to compel those acts.
• Section 40: the plaintiff may claim damages in addition to, or in place of, a perpetual or mandatory injunction.
• Section 41: lists the cases where an injunction cannot be granted.
• Section 42: an injunction may enforce a negative agreement even where the court cannot enforce the positive one.

Meaning and definition

An injunction is a court order that requires a person to stop an act or to do an act. Pollution is usually a continuing wrong, so the most valuable remedy is an order to stop it.

• Injunction (section 36)
  • TemporarySection 37(1). Lasts until a set time or further order. Granted during the suit.
  • PerpetualSections 37(2) and 38. Granted by decree on the merits. It stops an act permanently.
  • MandatorySection 39. Compels positive acts as well as stopping the breach.

Detailed explanation

Step 1: temporary injunction

An temporary injunction holds the position while the suit is pending. The Code of Civil Procedure, 1908 (Order XXXIX) regulates it. A victim asks for it at once, so that the polluter stops before the final decision.

Step 2: perpetual injunction (section 38)

A perpetual injunction is granted at the end of the suit and is permanent. Where the defendant invades or threatens to invade the plaintiff's right to or enjoyment of property, the court may grant it in these four cases:

• the defendant is trustee of the property for the plaintiff;
• there is no standard for ascertaining the actual damage caused or likely to be caused;
• compensation in money would not afford adequate relief;
• the injunction is necessary to prevent a multiplicity of judicial proceedings.

The second and third cases fit pollution well. The loss from a polluted well or a dirty stream is hard to measure in money.

Step 3: mandatory injunction (section 39)

A mandatory injunction orders positive acts. The act must be one the court can supervise and enforce. It suits cases where the polluter must install a treatment plant or remove a discharge pipe.

Step 4: damages (section 40)

The plaintiff in a suit for a perpetual or mandatory injunction may claim damages in addition to, or in substitution for, the injunction. The claim must be in the plaint. If it is not, the court must allow an amendment at any stage on just terms. If the suit is dismissed, the plaintiff cannot sue later for damages for the same breach.

Step 5: negative agreement (section 42)

Where a contract has a positive term coupled with a negative term, the court may enforce the negative term by injunction. This holds even if it cannot enforce the positive term, provided the plaintiff has performed his own part.

Exceptions and special rules

When an injunction is refused (section 41)

Section 41 says an injunction cannot be granted in these cases. The ones that matter in pollution suits are:

• Clause (f): to prevent, on the ground of nuisance, an act that is not reasonably clear to be a nuisance.
• Clause (g): to prevent a continuing breach in which the plaintiff has acquiesced.
• Clause (h): when equally efficacious relief can certainly be had by another usual mode of proceeding, except in breach of trust.
• Clause (ha): if it would impede or delay an infrastructure project or its continued services. The 2018 Amendment added this clause.
• Clause (i): when the plaintiff's own conduct disentitles him to the court's help.
• Clause (j): when the plaintiff has no personal interest in the matter.

Damages instead of an injunction

In an English nuisance case, A.L. Smith, L.J. gave a good working rule for when damages may replace an injunction. The injury must be small, capable of being estimated in money and adequately paid by a small sum, and an injunction must be oppressive to the defendant. In 2014 the UK Supreme Court said this is a guide to discretion, not a strict checklist. It still treats an injunction as the usual starting position.

Courts are slow to substitute money where the harm is to health or to a scarce resource such as clean water or air.

Don't confuse: kinds of injunction

Point	Temporary	Perpetual	Mandatory
Section	37(1)	37(2) and 38	39
When granted	At any stage of the suit	By decree on the merits	With a perpetual injunction, to compel acts
Effect	Holds the position for a time	Stops an act permanently	Compels positive acts
Pollution example	Stop the discharge during the suit	Ban further discharge	Install an effluent treatment plant

Common mistakes

• Saying that damages alone are the best remedy against continuing pollution. They do not stop it.
• Mixing the lettering of section 41. Clause (f) deals with nuisance and clause (h) with equally efficacious relief.
• Forgetting that a perpetual injunction needs a decree on the merits.
• Omitting clause (ha) added by the 2018 Amendment.
• Treating Shelfer as a strict checklist today.

Apply it

Problem

A dye factory at Panipat has polluted the neighbouring farm's borewell for two years. The farmer wants the pollution stopped, a treatment plant installed, and compensation for the lost crop. The factory says money is enough.

Issue

What reliefs can the farmer claim under the Specific Relief Act, 1963?

Rule

Sections 38, 39 and 40. Section 41(h) bars an injunction only where equally efficacious relief is certainly available by another usual mode.

Application

The loss to the borewell is hard to measure and money cannot restore it, so section 38(3)(b) and (c) apply. Installing a treatment plant is a positive act the court can supervise, so section 39 applies. The claim for the lost crop is damages under section 40.

Conclusion

The farmer can seek a perpetual injunction, a mandatory injunction and damages together, with a temporary injunction while the suit is pending.

Leading case laws

• Shelfer v. City of London Electric Lighting Co. (1895)

  Facts. An electricity company's generating station caused vibration and noise that harmed neighbouring premises.

  Principle. The Court of Appeal granted an injunction and set out the good working rule on when damages may replace one.

  Why it matters. It is the usual reference in nuisance cases. Coventry v. Lawrence (2014) treats the rule as a guide to discretion.

• Indian Council for Enviro-Legal Action v. Union of India (1996)

  Facts. Chemical plants in Bichhri left toxic sludge that polluted wells and soil.

  Principle. The Court directed the plants to close and the Central Government to recover the cost of remedial measures. It left villagers to sue for damages.

  Why it matters. It shows the closure order, the repair order and the damages claim as separate reliefs.

How to write this answer in the exam

Key points to remember

• Section 36: preventive relief by injunction, temporary or perpetual, at the court's discretion.
• Section 37: temporary injunction at any stage. Perpetual only by decree on the merits.
• Section 38: perpetual injunction. Section 39: mandatory injunction. Section 40: damages.
• Section 41: grounds for refusal. Clause (ha) was added in 2018.
• Section 42: injunction to enforce a negative agreement.
• Shelfer (1895): good working rule on damages instead of an injunction.

Quick self-test

Related topics

• Common Law remedies against pollution
• Relevant provisions of BNS and BNSS, for the abatement of public nuisance in pollution cases
• Reliefs against smoke and noise