Karnataka High Court
Suhas S Kulkarni vs Karnataka State Pollution Control ... on 8 November, 2022
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER 2022
PRESENT
THE HON'BLE MR. PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.22831 OF 2021 (GM-POL)
BETWEEN:
SUHAS S KULKARNI
AGE 45 YEARS,
FLAT NO.D-121, LIFESTYLE APARTMENTS
JP NAGAR, 8TH PHASE
BENGALURU-560083.
...PETITIONER
(BY SRI. SRIDHAR G, ADVOCATE)
AND:
1. KARNATAKA STATE POLLUTION CONTROL BOARD
REPRESENTED BY ITS CHAIRMAN
O/AT 'PARISARA BHAVAN', 1ST TO 5TH FLOOR,
NO.49, CHURCH STREET
BANGALORE-560001.
2. BANGALORE ELECTRICITY SUPPLY COMPANY
LIMITED (BESCOM)
REP. BY ITS MANAGING DIRECTOR,
NRUPATHUNGA ROAD, OPP: RBI, K R CIRCLE
BANGALORE-560001.
3. BANGALORE WATER SUPPLY AND SEWAGE BOARD
(BWSSB)
REPRESENTED BY ITS CHAIRMAN
W.P.No.22831/2021
2
1ST FLOOR, CAUVERY BHAVAN, KG ROAD
BANGALORE-560001.
4. BRUHAT BENGALURU MAHANAGARA PALIKE (BBMP)
REPRESENTED BY ITS COMMISSIONER
HUDSON CIRCLE
BANGALORE-560002.
5. THE DEPARTMENT OF ELECTRICAL INSPECTORATE
REPRESENTED BY ITS CHIEF ELECTRICAL
INSPECTOR
24TH MAIN ROAD VANGANAHALLI
SECTOR-2, HSR LAYOUT
BANGALORE-560102.
6. M/S T R BUILDERS AND DEVELOPERS
REPRESENTED BY ITS PARTNERS
1) M REDDAPPA
2) P G THYAGARAJ
3) P A VINAY
O/AT UTTARAHALLI MAIN ROAD,
SUBRAMANYAPURA POST, UTTARAHALLI
BANGALORE-560061.
7. VIJAY ANAND KUMAR
AGED ABOUT 55 YEARS,
S/O LATE DR. T C ANAND KUMAR
R/AT 'ASHWINI' NO.33/1, AGA ALI ABBAS ROAD
BENGALURU-560041.
8. MRS. KARPAGAM ANAND KUMAR
AGED ABOUT 77 YEARS,
W/O LATE DR. T C ANAND KUMAR
R/AT 'ASHWINI' NO.33/1, AGA ALI ABBAS ROAD
BENGALURU-560041.
....RESPONDENTS
(BY SRI. A MAHESH CHOUDHARY, ADVOCATE FOR R1
SMT. ANIKA RESHMI KUMARI, ADVOCATE FOR
SMT. RAKSHITHA D.J., ADVOCATE FOR R2
SRI. K.B. MONESH KUMAR, ADVOCATE FOR R3
SMT. SUNITHA KULKARNI, ADVOCTE FOR R4
R5, R7 & R8 SERVED AND UNREPRESENTED)
W.P.No.22831/2021
3
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO PASS AN ORDER QUASHING THE IMPUGNED NOTICES
/ ORDER DATED 31.01.2020 AND 01.03.2021 AS ISSUED
BY THE KSPCB ( 1ST RESPONDENT), PRODUCED AS
ANNEXURE -B AND ANNEXURE-C, RESPECTIVELY AND
ISSUE ISSUE A DECLARATION TO THE EFFECT THAT THE
PETITIONER HAVING VACATED THE PREMISES OF THE
PROJECT, IS NOT LIABLE TO BEAR THE ENVIRONMENTAL
DAMAGE AS IMPOSED BY THE 1ST RESPONDENT AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, ASHOK S. KINAGI, J., MADE THE
FOLLOWING:
ORDER
The petitioner aggrieved by the notice dated 31.01.2020, issued under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 (for short 'the Act of 1974'), r/w Section 34(4) of the Karnataka State Board for the Prevention and Control of Water Pollution (Procedure for Transaction of Business) and the Water (Prevention and Control of Pollution) Rules, 1976, has filed this writ petition.
2. Learned counsel for respondent No.1 raised a preliminary objection in regard to maintainability of writ petition on the ground that the petitioner has got an alternative remedy available under Section 33B of W.P.No.22831/2021 4 the Act of 1974 and hence he prays to dismiss the writ petition.
3. Per contra, learned counsel for the petitioner submits that the petitioner has vacated the premises and is not liable to pay the demands made by respondent No.1. Hence he submits that the writ petition filed by the petitioner is maintainable.
4. Heard and perused the records.
5. It is not in dispute that respondent No.3 issued notice under Section 33A of the Act of 1974 calling upon the occupier to pay Rs.3 Crores towards environmental compensation. Section 33B provides appeal to National Green Tribunal. Any person aggrieved by a) xxx; b) xxx; c) direction issued under Section 33A by a Board on or after the commencement of the National Green Tribunal Act, 2010, appeal lies to the National Green Tribunal. Admittedly, in the instant case, notice was issued after the commencement of the National Green W.P.No.22831/2021 5 Tribunal Act, 2010, i.e., on 31.01.2020 against direction under section 33A an appeal lies. The petitioner has got alternative remedy under clause 'c' of Section 33B of the Act. The petitioner without exhausting the alternative remedy, has filed this writ petition. Hence the writ petition filed by the petitioner is not maintainable. The Hon'ble Apex Court in the case of THE STATE OF MAHARASHTRA AND OTHERS vs. GREATSHIP (INDIA) LIMITED in Civil Appeal No.4956/2022 reiterates the position that when alternate remedy is available, the Court should refrain itself from exercising the jurisdiction. In paragraph 8, the Hon'ble Apex Court held as under:
" ... This Court has consistently taken the view that when there is an alternate remedy available, judicial prudence demands that the court refrains from exercising its jurisdiction under constitutional provisions."
It is further observed in paragraph 9 as under:
"... The High Court ought to have relegated, the writ petitioner - assessee to avail the statutory remedy of appeal and thereafter to avail other remedies provided under statute."W.P.No.22831/2021 6
6. We may also quote the observations of the Hon'ble Apex Court in the case of PHOENIX ARC PRIVATE LIMITED vs. VISHWA BHARATI VIDYA MANDIR passed in Civil Appeal Nos.257-259/2022 dated 12.01.2022 wherein, it is held that:
"While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self- imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising the power under Article 226 of the Constitution".
It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of the compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance."
W.P.No.22831/20217
7. When alternate remedy is available, we refrain from exercising the jurisdiction under Article 226 of the Constitution of India. In view of the above discussion, we proceed to pass the following:
ORDER The writ petition is dismissed. However, liberty is reserved to the petitioner to initiate appropriate proceedings before the appropriate forum, if so advised.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE RD