Meghalaya High Court
Dayanidhi Ventures Pvt. Ltd. vs . Meghalaya State Pollution Control on 16 December, 2021
Author: H.S.Thangkhiew
Bench: H.S.Thangkhiew
Serial No. 67
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C). No. 338 of 2021
Date of Order :16.12.2021
Dayanidhi Ventures Pvt. Ltd. Vs. Meghalaya State Pollution Control
Board & 2 Ors.
Coram:
Hon'ble Mr. Justice H.S.Thangkhiew, Judge.
Appearance:
For the Petitioner/Appellant(s) : Dr. B.P.Todi, Sr. Adv. with
Mr. K.P.Bhattacharjee, Adv.
For the Respondent(s) : Ms. I.Lyngwa, Adv. for R 1.
Mr. A.Kumar, AG with
Ms. Z.E.Nongkynrih, GA
Mr. S.Saraogi, GA for R 2 & 3.
i) Whether approved for reporting in Yes/No
Law journals etc:
ii) Whether approved for publication Yes/No
in press:
______________________________________________________________
JUDGMENT AND ORDER (ORAL)
1. This instant writ petition has been filed by the petitioner company on being aggrieved with the action of the respondents more particularly the respondent No. 1, the Meghalaya State Pollution Control Board which by notice dated 20-10-2021 had directed the petitioner company to pay Environmental Compensation for alleged operation of a quarry without consent to establish or operate. The case of the petitioner is that it does not possess any stone quarry and nor have they applied for one and nor have they operated any such quarry.
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2. Dr. B.P.Todi, learned Sr. counsel for the petitioner submits that the petitioner has been compelled to come before this Court seeking invocation of Article 226 of the Constitution in view of the fact that there has been a blatant violation of the Principles of Natural Justice by the respondents in levying the penalty of Rs. 69,90,000/- (Rupees Sixty-Nine lakhs, ninety thousand) only, by way of Environmental Compensation for purported illegal operation of the stone crusher stone quarry. Learned Sr. counsel submits that the petitioner was served with a show cause notice dated 24-11-2020, alleging that the petitioner as per a report which had been submitted by the respondent No. 3, was operating a stone quarry without lawful authority. Further he submits, that the said notice also stated that as per the order passed by the National Green Tribunal in Original Application No. 48/2019 (EZ), the National Green Tribunal had directed the State Government to assess the Environmental Compensation against the illegal mines. Learned Sr. counsel submits that the amount of Rs. 69,90,000/- (Rupees Sixty-Nine lakhs, ninety thousand) only, had been assessed as Environmental Compensation and no basis as to how the calculation was arrived at was furnished, to the petitioner.
3. The learned Sr. counsel submits that a show cause reply was filed on 31- 08-2021 to the notice dated 24-11-2020 denying the allegations made therein, by maintaining that the petitioner company did not own or operate any stone quarry in the area mentioned in the said notice, or for that matter in any other part of Meghalaya. Learned Sr. counsel further submits that a request was also made for the petitioner to be given a hearing and to drop the proceedings imposing Environmental Compensation, as the inspection report which according to the respondent No.1 was a basis for levying Environmental Compensation, was not enclosed with the show cause and nor was the petitioner 2 given the calculation as to how such a huge amount had been arrived at as Environmental Compensation. This the learned Sr. counsel contends, has resulted in the violation of the Principles of Natural Justice and inspite of repeated requests the respondent No.1 overlooked the same, as also the show cause reply dated 31-08-2021.
4. Learned Sr. counsel thereafter submits that the petitioner is aware that a case being Original Application No 48 of 2109, was filed before the National Green Tribunal, Eastern Zone, Kolkata by one Shri. Jitul Dutta and Ors. alleging the existence of many illegal stone mines/quarry and crusher units without valid permission in the State of Meghalaya and that the National Green Tribunal on different dates of hearing, has taken note of the issue and has directed the respondent No. 1 to assess and levy penalty upon such illegal stone quarries and crusher units for polluting the environment. Learned Sr. counsel however submits that those proceedings will have no bearing on the instant case, inasmuch as, the petitioner has come against the arbitrary actions of the respondents which are in violation of the Principles of Natural Justice. He further submits that the respondent No.1 who has taken action against the petitioner for recovery of Environmental Compensation, is to act in accordance with law and it was incumbent upon the respondent that the methodology of assessment be made known to the petitioner. The violation of both Air and Water Act, he contends, is within the jurisdiction of the respondent No. 1 and as such the Principles of Natural Justice have to be followed before any order or penalty is passed against the petitioner. The failure to adhere to the said Principles therefore, has made the instant proceedings amenable to writ jurisdiction even though it may be taken that there is alternative remedy available under the National Green Tribunal Act, 2010.
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5. In support of his submissions, the learned Sr. counsel has placed reliance on the following judgments:
(i) Harbanslal Sahnia & Anr. vs. Indian Oil Corpn. Ltd. & Ors.
reported in (2003) 2 SCC 107.
(ii) Nagarjuna Construction Company Limited vs. Government of Andhra Pradesh & Ors. reported in (2008) 16 SCC 276.
(iii) Mohinder Singh Gill and Anr. Vs. The Chief Election Commissioner, New Delhi & Ors. reported in AIR (1978) SC
851.
(iv) Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. & Ors.
reported in (2003) 2 SCC 111.
6. The learned Sr. counsel submits that the Hon'ble Supreme Court by the first two rulings above has held that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion and that circumstances exists when the High Court will still exercise its writ jurisdiction such as; where the writ petitioner seeks enforcement of any fundamental right; where there is failure of Principles of Natural Justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. He further submits in the latter two decisions quoted above, it has been held that orders of statutory authorities must be judged by the reasons mentioned therein and cannot be supplemented by fresh reasons and that in the exercise of power, when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner alone. He therefore submits, that as in the instant case there has been a clear violation of the Principles of Natural Justice and the proceedings being 4 irregular and wholly without jurisdiction, it is a fit case for interference by this Court, to correct the said lapses and if deemed necessary to remit back the matter to the respondent No.1 to start the proceedings afresh while affording adequate opportunity to the petitioner to present his case.
7. Mr. A.Kumar, learned AG on behalf of the respondents No. 2 & 3 at the outset has strongly contended that the writ petition is not maintainable in view of the existence of alternative efficacious remedy. He submits that the instant writ petition has impugned the notice dated 24-11-2020 and demand notice dated 20-10-2021 issued by the respondent No. 1 in exercise of powers under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31 of the Air (Prevention and Control of Pollution) Act, 1981. The learned AG submits that Section 16 of the National Green Tribunal Act confers appellate jurisdiction on the NGT from the orders of State Pollution Control Board and in this regard the NGT therefore has exclusive appellate jurisdiction.
8. Learned AG submits that by the petitioner's own admission, it has been acknowledged that the proceedings which have been sought to be challenged in the instant writ petition have emanated from the orders of the NGT. To substantiate his contention, the learned AG has drawn the attention of this Court to the proceedings and orders passed in Original Application No. 48/2019/EZ to show that the impugned orders have been passed pursuant to the directions of the NGT, which is seized with the matter of levy and recovery of Environmental Compensation from illegal stone mining and crushing activities in Meghalaya. He further submits that the impugned orders dated 24-11-2020 and the demand notice dated 20-10-2021, issued by the respondent No.1 clearly bear reference to orders dated 14-10-2020 and 29-10-2020 passed by the NGT 5 in Original Application No. 48/2019/EZ. He also strongly contends that the petitioner has deliberately and with full knowledge of the pendency of the proceedings before the NGT instituted the instant non-maintainable petition and on this ground alone the writ petition deserves no consideration by this Court.
9. The learned AG touching on the merits of the case submits that the petitioner has concealed the fact that two separate violations had been detected in the inspections conducted by the District Task Force, firstly in operating an illegal stone quarry under the name of its Director and secondly, having been found to have installed and ready to operate a stone crusher without any consent to establish, or consent to operate from the respondent No. 1. As such, he submits the petitioner had been proceeded against for the above-mentioned violations by separate orders dated 20-10-2021, for the stone quarry and 13-10- 2021 for the stone crusher. Learned AG reiterates the point that under orders passed by the NGT in OA No. 48/2019, a Committee had been constituted to conduct inspections in the said area to detect illegal mining and it was under
the orders of the NGT, that the District Task Force proceeded to carry out further inspection. Learned AG has also referred to the inspection report dated 02-03-2020, which he submits, clearly found that the petitioner had installed a plant which was ready to operate without any consent to establish or operate from the competent authority i.e. the respondent No. 1, and this report was thereafter submitted to the NGT through the duly constituted Committee.
10. Learned AG submits that this Court itself by order dated 02-09-2021, in WP(C). No. 196 of 2021, in a similarly situated case had allowed the petitioner therein to withdraw the petition and to avail of alternative remedy. Learned AG has also referred to the order dated 26-10-2021 passed by the NGT which 6 shows that the matter from where the instant impugned proceedings have emanated has been fixed on 10-01-2022 and submits that the petitioner by availing alternative appellate remedy will naturally be at liberty to take all the points that have been raised in this instant writ petition for consideration by the NGT, including the allegation of violation of the Principles of Natural Justice. In support of his arguments on the maintainability of the writ petition and other aspects, the learned AG has placed reliance on the following judgments:
(i) CIT vs. Chhabil Dass Agarwal reported in (2014) 1 SCC 603.
(ii) Cicily Kallarackal vs. Vehicle Factory reported in (2012) 8 SCC
524.
(iii) Bhopal Gas Peedith Mahila Udyog Sangathan vs. Union of India reported in (2012) 8 SCC 326.
(iv) Nivedita Sharma vs. Cellular Operators Assn. of India reported in (2011) 14 SC 337.
11. Learned AG submits that by the above noted decisions the Supreme Court has held that, undoubtedly, it is within the discretion of the High Court to invoke Article 226 despite existence of alternative remedy, however, the High Court must not interfere if there is an adequate efficacious alternative remedy available. Stressing on the case of Bhopal Gas (Supra), the learned AG submits that in this case, it was held that keeping in view the provisions and schemes of the NGT Act, environmental issues and matters covered under the NGT Act Schedule I, should be instituted and litigated before the NGT as such approach may be necessary to avoid the likelihood of conflict of orders between the High Courts and the NGT. Thus, he submits that though the Supreme Court has recognized that there are some exceptions to the rule of alternative remedy, 7 however, if an effective alternative remedy is available to the aggrieved person, or a statute under which the action complained of contains mechanism for effective redressal of the grievance, then the High Court will not entertain a petition under Article 226 of the Constitution. Learned AG then closes his arguments by submitting that all the grounds taken by the petitioner can be raised in a regular statutory appeal before the NGT including the questions of the violation of the Principles of Natural Justice. As such, he contends the instant writ petition is without any merit and should be dismissed.
12. I have heard learned counsels for the parties. From the submissions of Dr. B.P.Todi, learned Sr. advocate, it can briefly be put that the grievance centers around the perceived denial of opportunity to present the petitioner's case, coupled with the contention that the respondent No. 1 while issuing the show cause and passing the orders had not adhered to the statutory obligations, as the respondent was wont to do under the respective statutes of Air and Water Pollution. Per contra, the arguments put up by the respondents, simply put, is that the proceedings and such orders and appeals therefrom, falling squarely within the mechanism of redressal as contained in the NGT Act, and the fact that the proceedings in issue herein have emanated from a pending adjudication before the NGT, leaves no question as to where the relief is to be sought from by the petitioner.
13. It is undisputed that respondent No. 1 had issued the impunged orders in exercise of powers under Section 33A of The Water (Prevention and Control of Pollution) Act, 1974 and Section 31 of The Air (Prevention and Control of Pollution) Act, 1981 which are Acts mentioned in Schedule I to the NGT Act. In this context, Section 16 of the NGT Act, 2010 confers appellate jurisdiction on the NGT from the orders of such Pollution Control Boards such as 8 respondent No. 1. For the sake of convenience, the relevant provisions as contained in Section 16 are reproduced herein below:
"16. Any person aggrieved by,-
(c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board, under section 33A of the Water (Prevention and Control of Pollution) Act, 1974;
(f) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981."
What follows therefore, is that a logical progression for the petitioner should have been to seek relief before the NGT, but for other reasons as has been sought to be made out, that is, presence of alternative remedy which will not bar this Court from entertaining the writ petition, it has approached this Court seeking relief. This Court has given its thoughtful consideration to this aspect wherein allegations have been made by the petitioner as to the infirmities in procedure and the denial of opportunity to warrant interference by this Court, but however, it is noted that this is not a case where the said infractions have been occasioned on a different set of circumstances that are from related proceedings. This observation is being made in view of the fact that, the petitioner by its own admission has knowledge of the proceedings of OA. No. 48/2019 EZ, wherefrom all the subsequent events have occurred which includes the proceedings that have been initiated against it, by the respondent No. 1.
14. In this backdrop, though as noted above, the petitioner has raised certain issues which given a different set of circumstances may have warranted the exercise of discretionary powers, to interfere or to even remit the matter for reconsideration by the competent authority, the fact that the proceedings are 9 interlinked and interconnected to the proceedings pending before the NGT, and that the alleged violations have been detected by Committees and Task Force constituted under the orders of the NGT will surely prevent this Court from exercising such discretion. I find force in the arguments of the learned AG and also in this regard the decision rendered in Bhopal Gas (Supra) of which the Hon'ble Supreme Court had held at paras 40 and 41 as below.
"40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short the 'NGT Act') particularly Sections 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal (for short 'NGT'). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and the NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before the NGT. This will help in rendering expeditious and specialized justice in the field of environment to all concerned.
41. We find it imperative to place on record a caution for consideration of the courts of competent jurisdiction that the cases filed and pending prior to coming into force of the NGT Act, involving questions of environmental laws and/or relating to any of the seven statutes specified in Schedule I of the NGT Act, should also be dealt with by the specialized tribunal, that is the NGT, created under the provisions of the NGT Act. The Courts may be well advised to direct transfer of such cases to the NGT in its discretion, as it will be in the fitness of administration of justice."
15. In view of the reasons aforementioned, without going into any other aspect of the matter, the instant writ petition is held to be not maintainable and hence is accordingly dismissed. Needless to add, the legality of the impugned orders has not been gone into by this Court which the petitioner is free to raise 10 before the appropriate forum. The interim orders passed earlier also stands vacated.
16. No order as to costs.
Judge Meghalaya 16.12.2021 "Samantha PS"
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