Calcutta High Court (Appellete Side)
Avishek Paul Chowdhury And Ors vs The State Of West Bengal And Ors on 12 April, 2022
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
12.04.2022
Court No.13
Item No.27
sp
WPA 5908 of 2022
Avishek Paul Chowdhury and Ors.
Vs.
The State of West Bengal and Ors.
(Through Video Conference)
Mr. Saktinath Mukherjee, Senior Advocate
Mr. Saptansu Basu, Senior Advocate
Mr. Biswaroop Bhattacharya
Mr. Arup Nath Bhattacharyya
Mr. Priyabrata Thakur
Ms. Sayani Das
Mr. Varun Kothari
Ms. Mrinalini Majumder
Ms. Sreetama Biswas
Ms. Ivee Bhattacharjee
... For the Petitioners.
Mr. T.M. Siddiqui
Mr. Nilotpal Chatterjee
... For the State.
Mr. Arjun Ray Mukherjee
Mr. Joyjeev Medhi
... For the Respondent No.3.
Mr. Arindam Banerjee Ms. Paushali Banerjee ... For the Respondent No.7.
Mr. Satinath Mukherjee, learned Senior Counsel appearing for the petitioners has placed portions of the writ petition and the impugned order to argue that the National Green Tribunal had acted without its jurisdiction but also in violation of the mandate under the National Green Tribunal Act, 2010. In addition thereto, it is sought to be demonstrated from the judgment itself, that the statutory authorities have not 2 found any violation of the 2011 Coastal Regulation Zone Notification.
Counsel for the complainant before the Tribunal has raised the question of maintainability of the writ petition since the final orders of the National Green Tribunal are appealable. Reliance is placed in Section 22 of the Act of 2010 to indicate that when a statutory appeal is provided before the Hon'ble Supreme Court against the orders of the National Green Tribunal. Reference is made to a decision of the Andhra Pradesh High Court in the case of State of Telangana through its Chief Secretary, Khairatabad, Hyderabad, Telangana and another vs. Md. Hayath Uddin and others reported in 2017 SCC Online Hyd 356 Mr. Mukherjee cited a decision of the Supreme Court in the case of Ganesan represented by its power agent G. Rukmani Ganesan vs. Commissioner, Tamil Nadu Hindu Religious and Charitable Endowments Board and others reported in (2019) 7 SCC 108 to canvas the argument that Section 14(3) of the Act of 2010, prescribes that the application before the Tribunal cannot be entertained unless it is filed within a period of six months from when the cause of action first arose. It is submitted by reference to the aforesaid judgment that the provisions of the Limitation Act, 1963, either Section 5 or Section 22 of the said Act, have no manner of application to crave out an exception to a statutory 3 period of limitation prescribed by a special statute such as the NGT Act of 2020.
Another argument advanced by the counsel for the petitioner is that the River Centric Urban Planning Guidelines, issued by the Ministry of Housing and Urban Affairs, Government of India brought into force on May 18, 2021, have no manner of application, since the petitioners' hotel was established in the year 2014 that too with the consent to establish and 'Consent to Operate' given by the State Pollution Control Board.
This Court is of the view that the question of jurisdiction would be a mixed question of fact and law in the instant case. This Court is inclined to accept the submission of the learned counsel for the complainant/respondent that he should be permitted to bring on record certain other portions and parts of the record that had been placed before the National Green Tribunal, for the matter to be effectively adjudicated, even on the question of jurisdiction.
In that view of the matter, let affidavit-in- opposition be filed within a period of two weeks from date, reply, if any, be filed two weeks thereafter.
List the matter four weeks hence under the heading 'Fixed Matter'.
4
The restraint on the District Magistrate not to take steps shall continue for a period of six weeks from date.
(Rajasekhar Mantha, J.)