Bikash Swain vs Krushna Chandra Khatua And Others on 19 April, 2024

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Orissa High Court

Bikash Swain vs Krushna Chandra Khatua And Others on 19 April, 2024

An order dated 11.08.2023 passed by a learned Single Judge of this Court in W.P.(C) No.25072 of 2023 is under challenge in the present intra-Court appeal, whereby the writ petition filed by the appellant has not been entertained, there being provision of appeal W.A. No.2051 of 2023 Page 1 of 16 to the Supreme Court under Section 22 of the National Green Tribunal Act, 2010 (hereinafter referred to as 'the NGT Act') against an order dated 17.07.2023 passed by the National Green Tribunal (NGT), Eastern Zone Bench, Kolkata in Original Application No.14/2023/EZ, which was put to challenge in the said writ petition.

2. We have heard Mr. Prabhu Prasanna Behera, learned counsel appearing on behalf of the appellant at length. The written notes of arguments have also been filed by learned counsel on behalf of the appellant.

3. Assailing the impugned order passed by the learned Single Judge, Mr. Behera, learned counsel for the appellant has submitted that the statutory provision of appeal under Section 22 of the NGT Act does not oust the High Court's jurisdiction under Articles 226 and 227 of the Constitution of India. He has argued that the order dated 17.07.2023 passed by the NGT being in breach of the principles of natural justice, the learned Single Judge ought to have dealt with the merits of the case. It has been argued further that though the State Government's report is in favour of the appellant, the finding recorded by the NGT in its impugned order dated 17.07.2023 does not refer to the same and, therefore, the said order of the NGT suffers from the vice of non-application of mind.

4. In support of his submissions, mainly, on the point that this Court's jurisdiction under Article 226/227 of the Constitution of India is not ousted despite the existence of alternative remedy of W.A. No.2051 of 2023 Page 2 of 16 appeal, Mr. Behera, learned counsel has relied on the following decisions of the Supreme Court of India:-

(i) L. Chandra Kumar v. Union of India (AIR 1997 SC 1125);

(ii) Madhya Pradesh High Court Advocates Bar Association v. Union of India (AIR 2022 SC 2713); and

(iii) Ibrat Faizan v. Omaxe Buildhome Private Limited (2022 SCC OnLine SC 620).

Reliance has also been placed on a decision of this Court in case of Kalia Sethi v. State of Odisha; reported in 2018 (I) OLR 386 and a decision of the Allahabad High Court in the case of M/s. Hotel The Grand Tulsi v. State of U.P. (Neutral Citation No.2023:AHC:160024-DB).

5. He has argued that the learned Single Judge ought to have taken into account the fact that though the appellant was impleaded as party to the said Original Application No.14/2023/EZ before the NGT, he was not heard and in such circumstance, the learned Single Judge ought not to have declined to entertain the writ petition filed by the present appellant against the said order of the NGT on the ground of existence of alternative statutory remedy of appeal.

6. In our considered opinion, there cannot be any controversy over the settled legal position that the NGT is within the purview of Articles 226 and 227 jurisdictions of the High Courts. The power of judicial review under Articles 226 , 227 and 32 of the Constitution W.A. No.2051 of 2023 Page 3 of 16 of India has been recognised as part of the basic structure of our Constitution which is inviolable as laid down in case of L. Chandra Kumar v. Union of India (supra). The Supreme Court in case of Madhya Pradesh High Court Advocates Bar Association v. Union of India (supra), after having noticed the law laid down in the case of L. Chandra Kumar v. Union of India (supra), has noted that while exercising such jurisdiction under Articles 226 and 227 of the Constitution against the orders of the NGT, the Court necessarily exercises due discretion whether to entertain or to reject the petition, as per the test broadly laid down in case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai; reported in (1998) 8 SCC 1.

7. It is also noteworthy that in case of Madhya Pradesh High Court Advocates Bar Association v. Union of India (supra), the vires of Section 14 read with Section 22 of the NGT Act was challenged as unconstitutional on the ground that it purported to exclude the writ jurisdiction of the High Court under Article 226/227 of the Constitution of India. There were altogether four issues framed by the Supreme Court to be answered including the following two:

A. Whether the NGT ousts the High Court's jurisdiction under Sections 14 and 22 of the NGT Act?

B. xxx xxx xxx xxx xxx C. Whether the remedy of direct appeal to the Supreme Court from the decisions of the NGT under W.A. No.2051 of 2023 Page 4 of 16 Section 22 of the NGT Act is ultra vires to the Constitution? Whether an appeal mechanism be provided to the High Courts from the decisions of the NGT?

D. xxx xxx xxx xxx xxx

8. In the wake of the challenge to the vires of Section 22 of the NGT Act, the Supreme Court, after having noted the statutory provisions under the NGT Act, answered Issue No. A in paragraph-

15, which reads as under:

"15. It is also noteworthy that nothing contained in the NGT Act either impliedly or explicitly, ousts the jurisdiction of the High Courts under Article 226 and 227 and the power of judicial review remains intact and unaffected by the NGT Act. The prerogative of writ jurisdiction of High Courts is neither taken away nor it can be ousted, as without any doubt, it is definitely a part of the basic structure of the Constitution. The High Court's exercise their discretion in tandem with the law depending on the facts of each particular case. Since the High Court's jurisdiction remain unaffected, the first question is answered in the negative, against the Petitioners."

9. Dealing with the Issue No. C, the Supreme Court held in paragraph-24, as follows:

"24. xxx xxx xxx On this aspect it needs to be observed that even when a direct appeal to the Supreme Court is provided by a statute against the decision of a tribunal, the remedy under Article 226 or 227 before the High Court remains unextinguished. Moreover, the Appeal under Section 22 of the NGT Act, is limited to the grounds under Section 100 of the Code of Civil Procedure and W.A. No.2051 of 2023 Page 5 of 16 the Supreme Court does not function as a regular first appellate Court. However, under Article 226 or 227, remedies on issues of jurisdiction and also under the principles set out in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation MANU/UKWA/0002/1947 : [1948] 1 KB 223, are available for an aggrieved party. Subject to discretion being exercised, the affected litigants can move High Court Under Article 226 or 227 and in such cases, a SLP under Article 136 of the Constitution could also be maintained to the Supreme Court from the High Court's verdict."

10. The Supreme Court further held in case of Madhya Pradesh High Court Advocates Bar Association v. Union of India (supra) that the options available to a litigant to question an order passed by the NGT is either to move to the Supreme Court in a case where substantial question of law arises or proceed under Article 226 or 227 of the Constitution of India. Seeing no reason to strike down Section 22 of the NGT Act as ultra vires the provisions of the Constitution, the Supreme Court held in paragraphs-26 and 27 as under:

"26. The options available to a litigant to either move to the Supreme Court in a case where a substantial question of law arises or proceed under Article 226 or 227 must not also be overlooked. If necessary, a party can also approach this Court by way of an Article 136 petition. With such choices being available for a party no rational justification is found for striking down Section 22 of the Act which provides for a direct appeal to the Supreme Court.

27. A litigating party must also realise that in any event, if the opposite side approaches the Supreme W.A. No.2051 of 2023 Page 6 of 16 Court, the litigant on the other side would have to defend his case before this Court and at that stage they cannot be complaining about the distance to Delhi. Thus, the remedy of direct appeal to the Supreme Court under the NGT Act from the NGT's decision cannot be seen as denial of access to justice to the litigants in the field of environmental law."

11. In case of Ibrat Faizan v. Omaxe Buildhome Private Limited (supra), the Supreme Court had the occasion to consider the maintainability of a proceeding under Article 226 of the Constitution of India against an order passed by the National Consumer Disputes Redressal Commission, New Delhi (for short, 'National Commission') in an appeal under Section 58(1)(a)(iii) of the Consumer Protection Act, 2019. The maintainability of the proceeding before the Delhi High Court was questioned on the ground of availability of alternative remedy of appeal before the Supreme Court under Section 67 of the Consumer Protection Act, 2019. In the said case, an order passed by the National Commission under Section 58(1)(a)(iii) was under challenge.

12. Upon close scrutiny of the provisions under Sections 58 and 67 of the Consumer Protection Act, 2019, the Supreme Court held in paragraph-20 as under:

"20. It is not in dispute that in the present case, the appeal before the National Commission was against the order passed by the State Commission under Section 47(1)(a) of the 2019 Act. Therefore, against the order passed by the State Commission passed in a complaint in exercise of its powers conferred under Section 47(1)(a) of the 2019 Act, an appeal to the National Commission was maintainable, as provided W.A. No.2051 of 2023 Page 7 of 16 under Section 58(1)(a)(iii) of the 2019 Act. As per Section 67 of the 2019 Act, any person, aggrieved by an order made by the National Commission of its powers conferred by sub-clause (i) or (ii) of clause

(a) of sub-section (1) of Section 58, may prefer an appeal against such order to the Supreme Court.

Therefore, an appeal against the order passed by the National Commission to this Court would be maintainable only in case the order is passed by the National Commission in exercise of its powers conferred under Section 58(1)(a)(i) or under Section 58(1)(a)(ii) of the 2019 Act. No further appeal to this Court is provided against the order passed by the National Commission in exercise of its powers conferred under Section 58(1)(a)(iii) or under Section 58(1)(a)(iv) of the 2019 Act. In that view of the matter, the remedy which may be available to the aggrieved party against the order passed by the National Commission in an appeal under Section 58(1)(a)(iii) or Section 58(1)(a)(iv) would be to approach the concerned High Court having jurisdiction under Article 227 of the Constitution of India."

(Emphasis added)

13. Apparently, thus, the Supreme Court in the said case, after having noticed the legal position that there was no appeal maintainable against an order passed under Section 58(1)(a)(iii) of the Consumer Protection Act, 2019, held that the remedy which might be available to the aggrieved party against an order passed by the National Commission in an appeal under Section 58(1)(a)(iii) or Section 58(1)(a)(iv) would be to approach the concerned High Court having jurisdiction under Article 227 of the Constitution of India.

W.A. No.2051 of 2023 Page 8 of 16

14. It would be beneficial to notice a subsequent decision of the Supreme Court in case of Universal Sompo General Insurance Co. Ltd. V. Suresh Chand Jain; 2023 SCC OnLine SC 877, in which case also an order passed by the National Consumer Disputes Redressal Commission (NCDRC) dismissing an appeal filed by the petitioner of that case against an order passed by the State Consumer Disputes Redressal Commission (SCDRC) was sought to be challenged in a proceeding under Article 136 of the Constitution of India. In that case, the Supreme Court considered the question as to whether the said petition seeking special leave to appeal under Article 136 of the Constitution directly to the Supreme Court should be entertained against an order passed by the NCDRC in exercise of its appellate jurisdiction or should be relegated to the petitioner the remedy of filing a writ petition under Article 226 of the Constitution or a petition invoking supervisory jurisdiction of the jurisdictional High Court under Article 227 of the Constitution of India.

15. In case of Universal Sompo General Insurance Co. Ltd. V. Suresh Chand Jain (supra), the Supreme Court, after having considered the scope of grant of special leave under Article 136 of the Constitution of India and taking into account the decision in case of Ibrat Faizan v. Omaxe Buildhome Private Limited (supra), held in paragraph-38 as under:

"38. In the aforesaid view of the matter, we have reached to the conclusion that we should not adjudicate this petition on merits. We must ask the W.A. No.2051 of 2023 Page 9 of 16 petitioner herein to first go before the jurisdictional High Court either by way of a writ application under Article 226 of the Constitution or by invoking the supervisory jurisdiction of the jurisdictional High Court under Article 227 of the Constitution. Of course, after the High Court adjudicates and passes a final order, it is always open for either of the parties to thereafter come before this Court by filing special leave petition, seeking leave to appeal under Article 136 of the Constitution.

16. It is significant to notice that in both the cases, i.e. Ibrat Faizan v. Omaxe Buildhome Private Limited (supra) and Universal Sompo General Insurance Co. Ltd. V. Suresh Chand Jain (supra), there was no statutory remedy of appeal available against the orders passed by the NCDRC under the provisions of the Consumer Protection Act, 2019. It was in that background that the Supreme Court in the case of Ibrat Faizan v. Omaxe Buildhome Private Limited (supra), held that the petition filed in the Delhi High Court under Article 227 of the Constitution was maintainable and could be entertained; and in case of Universal Sompo General Insurance Co. Ltd. v. Suresh Chand Jain (supra), it held that instead of challenging the order of the NCDRC directly before the Supreme Court invoking Article 136 of the Constitution of India, the litigant ought to have approached the concerned High Court having jurisdiction under Articles 226 or 227 of the Constitution.

17. We reiterate our view, based on settled legal principles that the alternative statutory remedy is not a bar for a High Court to entertain an application under Article 226/227 of the Constitution of W.A. No.2051 of 2023 Page 10 of 16 India. When an alternative remedy is available, a writ petition under Article 226 of the Constitution can be entertained only in exceptional circumstances, namely, breach of fundamental rights, violation of principles of natural justice, excess of jurisdiction or a challenge to the vires of the statute or delegated legislation is made.

18. It would, however, be prudent for us to notice the provisions under Section 22 of the NGT Act, which reads as under:

"22. Appeal to Supreme Court.--

Any person aggrieved by any award, decision or order of the Tribunal, may, file an appeal to the Supreme Court, within ninety days from the date of communication of the award, decision or order of the Tribunal, to him, on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (5 of 1908):

Provided that the Supreme Court may entertain any appeal after the expiry of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal."

19. This Court cannot be oblivious of the opinion of the law enunciated by the Supreme Court in Municipal Corporation of Greater Mumbai v. Ankita Sinha, (2022) 13 SCC 401 wherein uniqueness of functioning and jurisdiction of the National Green Tribunal has been considered, which is to the following effect:

"22.1 While we see many tribunals functioning within their specified domains, variances do exist in the manner in which they are designed to function. The statutory Tribunals were categorized to fall under four subheads; Administrative Tribunals under Article W.A. No.2051 of 2023 Page 11 of 16 323A; Tribunals under Article 323B; Specialized sector Tribunals and most prominently; Tribunals to safeguard rights under Article 21."

20. In the said reported case the said Court has also remarked that "the NGT was conceived as a specialized forum not only as a like substitute for a civil court but more importantly to take over all the environment related cases from the High Courts and the Supreme Court". After so observing, with respect to sui generis body the Supreme Court proceeded to hold that:

"26.3 As earlier seen, S.20 of the NGT Act which includes the term "decision", in addition to "order"

and "award", also require the Tribunal to apply the 'Precautionary Principle' and the statutory mandate being relevant is extracted:

"20. Tribunal to apply certain principles.-- The Tribunal shall, while passing any order or decisions or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle."

26.4 The principle set out above must apply in the widest amplitude to ensure that it is not only resorted to for adjudicatory purposes but also for other 'decisions' or 'orders' to governmental authorities or polluters, when they fail to "to anticipate, prevent and attack the causes of environmental degradation"

[Vellore Citizens (supra), S. Jagannathan v. Union of India (1997) 2 SCC 87, Karnataka Industrial Areas Development Board v. C Kenchappa and Ors (2006) 6 SCC 371]. Two aspects must therefore be emphasized i.e. that the Tribunal is itself required to carry out W.A. No.2051 of 2023 Page 12 of 16 preventive and protective measures, as well as hold governmental and private authorities accountable for failing to uphold environmental interests. Thus, a narrow interpretation for NGT's powers should be eschewed to adopt one which allows for full flow of the forum's power within the environmental domain.

26.5 It is not only a matter of rhetoric that the Tribunal is to remain ever vigilant, but an important legal onus is cast upon it to act with promptitude to deal with environmental exigencies. The responsibility is not just to resolve legal ambiguities but to arrive at a reasoned and fair result for environmental problems which are adversarial as well as non-adversarial.

It would be apposite here to refer to Justice Benjamin Cardozo, of the United States Supreme Court, who in his seminal treatise, 'The Nature of the Judicial Process', stated thus, "It is true that codes and statutes do not render the judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are doubts and ambiguities to be cleared. There are hardships and wrongs to be mitigated if not avoided."

The above could be a pointer towards the preemptive functions of the NGT as a sui generis body."

21. It may be matter of significance to notice the conception of the National Green Tribunal as observed by the Supreme Court in Ankita Sinha (supra) with reference to 186th Report of the Law Commission of India dated 23.9.2003:

W.A. No.2051 of 2023 Page 13 of 16

"13.3 The above would suggest that the Law Commission was of the opinion that it is not convenient for the High Courts and the Supreme Court to make local inquiries or receive evidence. Moreover, the superior courts will not have access to expert environmental scientists on permanent basis to assist them. Therefore, NGT was conceived as a complimentary specialized forum to deal with all environmental multidisciplinary issues both as original and also as an appellate authority, which complex issues were hitherto dealt with by the High Courts and the Supreme Court.

13.4. *** Thus, the power of judicial review was omitted to ensure avoidance of High Courts' interference with the Tribunal's orders by way of a midway scrutiny by the High Court, before the matter travels to the Supreme Court where NGT's orders can be challenged. The streamlining of the mechanism was to arrest the growing tide of litigation before High Courts and the Supreme Court and shift such issues to the domain of the NGT."

22. Regard being had to the special statute conferring powers on the National Green Tribunal, the Supreme Court in Ankita Sinha (supra) further observed as follows:

"17.1 As can be seen, the Parliament intended to confer wide jurisdiction on the NGT so that it can deal with the multitude of issues relating to the environment which were being dealt with by the High Courts under Article 226 of the Constitution or by the Supreme Court under Article 32 of the Constitution. The Tribunal is also expected to proceed with such matters W.A. No.2051 of 2023 Page 14 of 16 with the understanding that environment and environmental principles are part of Article 21 of the Constitution."

23. With the aforesaid backdrop, this Court feels it apposite to investigate into the scope of interference with the nature of "order" challenged in the present writ petition. Bare reading of Section 22 of the NGT Act makes it clear that "any person aggrieved" may challenge any order/decision before the Supreme Court. Therefore, when efficacious alternative remedy is available under the statute, the remedy sought for by the petitioner by way of writ petition seems to be uncalled for.

24. As has been noted above, Mr. Behera, learned counsel appearing on behalf of the appellant has argued that without giving the appellant an opportunity of hearing, the NGT passed the impugned order on 17.07.2023. The said order is there on record by way of Annexure-1 to the writ petition (W.P.(C) No.25072 of 2023). In the said order, the NGT has noted in paragraph-15 that none appeared on behalf of the respondent no.6 (the appellant herein) nor was any counter affidavit filed, though the appellant was duly served the notice of the case as was clear from the affidavit of service filed by the applicant of the said case. The appellant has not disputed in his pleadings in the writ petition about the service of notice. It is rather its plea that on account of genuine reasons, he could not appear and contest the case since his wife was diagnosed with breast cancer for which, she was admitted in the All India Institute of Medical Sciences (AIIMS) Hospital at New Delhi.

W.A. No.2051 of 2023 Page 15 of 16

25. In our considered view, the appellant's challenge to the order of the NGT on the ground of violation of principles of natural justice is not tenable in the eye of law. In the present case, the appellant has the statutory remedy of appeal against the impugned order passed by the NGT. There was no exceptional circumstance before the learned Single Judge to have entertained the writ petition, there being statutory remedy of appeal. In an intra-Court appeal, we decline to interfere with the impugned decision of the learned Single Judge, which does not suffer from any legal infirmity.

26. Resultantly, we do not find any merit in this intra-Court appeal, which accordingly stands dismissed, but in the circumstances with no order as to costs.





                                                                      (Chakradhari Sharan Singh)
                                                                             Chief Justice

             Mr. M.S. Raman, J.                   I agree.

                                                                               (M.S. Raman)
                                                                                  Judge

                S. Behera/ Sr. Steno

Signature Not Verified
Digitally Signed
Signed by: SUMANTA BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 22-Apr-2024 16:26:39




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