Satishbhai R Patil vs Gujarat Industrial Development ... on 13 July, 2018

[Cites 8, Cited by 0]

Gujarat High Court

Satishbhai R Patil vs Gujarat Industrial Development ... on 13 July, 2018

Bench: A.J. Shastri

       C/SCA/2930/2014                                        CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 2930 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE A.J. SHASTRI
===============================================================
1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

================================================================
                      SATISHBHAI R PATIL
                            Versus
      GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION (GIDC)
================================================================
Appearance:
MR MM SAIYED(1806) for the PETITIONER(s) No. 1
MR UTKARSH SHARMA, AGP for the RESPONDENT(s) No. 4
MR ABHISHEK M MEHTA(3469) for the RESPONDENT(s) No. 3
MR RD DAVE(264) for the RESPONDENT(s) No. 1
MS DHARMISTHA RAVAL FOR MRS KALPANAK RAVAL(1046) for the
RESPONDENT(s) No. 2
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 4
==========================================================

    CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

                               Date : 13/07/2018

                                CAV JUDGMENT

1. The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs :

Page 1 of 30 C/SCA/2930/2014 CAV JUDGMENT

"A. The Hon'ble Court may be pleased to issue appropriate writs including that of quo warranto against respondent No.3 NCTL and be pleased to quash and set aside the monitoring and control policy (AnnexureC) framed by respondent No.3 and be further pleased to restrain respondent No.3 it's officer bearer, director from framing policy whereby they can collect sample of water, fix the standard about limit of permissibility of COD, PH etc. in discharged water, and adjudicate and impose penalty.

B. The Hon'ble Court may be pleased to issue appropriate writ, order and/or direction in nature of writ and be pleased to restrain respondent No.3 from collecting the samples, getting it analyzed and passing order of penalty and suspension of membership in Ankleshwar, Panoli and Jhagadiya Industries estate.

C. The Hon'ble Court may be pleased to issue appropriate writ and be pleased to direct respondent No.3 to return the amount of penalties and deposit of Appeal received from petitioner.

D. The Hon'ble Court may be pleased to issue appropriate writ to respondent No.1 GPCB to discharge its duty in Estate of Gujarat Industrial Development Corporation at Ankleshwar, Panoli and Jaghadiaya.

E. Pending hearing admission, hearing and final decision at this petition, the Hon'ble Court may be pleased restrain respondent No.3, its employee / office bearers, director, chairman from collecting sample, sending it to laboratory and adjudicating and inflicting penalty in Ankleshwar, Jhagadiya and Panoli Industries Estate.

F. Any other and further relief may be granted in facts and circumstances of the case."

Page 2 of 30 C/SCA/2930/2014 CAV JUDGMENT

2. The premise on which the writ of quo warranto was sought from the Court is that the petitioner is the owner of Mahesh Industries Ltd. located upon Plot No.4767 of Ankleshwar GIDC and is engaged in producing liquid Bromine in the said factory. The petitioner's unit is Zero discharge unit as per the say of the petitioner and is not discharging any sort of contaminated water. The practice of respondent is such that one has to become a member of respondent No.3 i.e. Narmada Cleantech Limited in order to start a unit in Ankleshwar GIDC. Though the petitioner does not have any discharge of any contaminated water, yet the condition imposed upon the petitioner by respondent No.2 in the year 2006. The respondent No.3 is a company registered under the Companies Act,1956, in the year 1999 and formed by GIDC and the industrial estate. In the year 2000, same was renamed as Narmada Cleantech Limited in which the share of GIDC is to the extent of 49% and it was proposed to raise upto 51% shares of the company as are offered to private companies located in Ankleshwar, Panoli and Jhagadiya industrial establishments on the basis of consumption of raw water by concerned unit as a part of Article of Association of respondent No.3 company.

2.1 It is further the case of the petitioner that Article of Association of respondent No.3 company has, in fact, 21 Directors, out of which 12 are to be appointed by GIDC while remaining 9 are to be appointed from industries. The respondent No.3 - NCTL Page 3 of 30 C/SCA/2930/2014 CAV JUDGMENT has formed monitoring and controlling policy whereby the have assumed the statutory powers which neither it possesses nor it can be delegated. The power of Gujarat Pollution Control Board and of Central Government are illegally usurped by the office bearers of respondent No.3 company and the industrialist on board of the company. By mentioning the objection of respondent No.3, it has been contended that at about March,2013, the office of respondent No.3 company claimed to have taken sample around 12.45 hours in the night from storm drain of petitioner meant for the monsoon rain. It is the case of the petitioner that respondent No.3 has claimed that said sample was tested in some laboratory other than Government and that PH of water was not within the standard prescribed by respondent No.3 company and it also contains Amine more than prescribed limit by respondent No.3. By such initiation against the petitioner, the petitioner was directed to pay Rs.50,000/ by way of penalty and Rs.5000/ as a part of restoration charges and his water connection from notified area authority are ordered to be terminated for a period of 7 days.

2.2 It is further the case of the petitioner that it had pleaded before the officers of NCTL i.e. respondent No.3 that it is a zero discharge unit and sample was claimed to have taken in night when the company was closed, yet without verifying anything, a total sum of Rs.55,000/ was saddled in addition to service charges vide order dated 2.4.2013. It is Page 4 of 30 C/SCA/2930/2014 CAV JUDGMENT further the case of the petitioner that employee of respondent No.3 again claimed that they took another sample from petitioner's drain on 2.9.2013 and again, they come up with a case that water contained code more than permissible limit. Though the petitioner did not admit about correctness of allegation of communication dated 27.9.2013, the petitioner was again ordered to pay a sum of Rs.1 lakh by way of penalty with Rs.5000/ by way of restoration charges. Again, a protest was raised by the petitioner, did not agree to the correctness of the order communicated on 27.9.2013 but, the officers of respondent No.3 conveyed the petitioner that he has an option of appeal, for which Rs.25,000/ deposit was a condition precedent and the venue of Appeal was Udhyog Bhavan, Gandhinagar. 2.3 The petitioner, feeling aggrieved by the aforesaid action, approached the appellate authority at Gandhinagar by way of appeal and presented himself on 28.10.2013. But then vide communication dated 6.11.2013, the petitioner was conveyed that his appeal is dismissed and deposit of Rs.25,000/ is forfeited and the petitioner was ordered to pay a sum of Rs.1 lakh by way of penalty including Rs.5000/ by way of restoration charges and the membership was terminated for a period of 7 days. It is further the case of the petitioner that in reply to the applications under Right to Information Act, NCTL has declared that on the basis of NOC issued by the GPCB, it is exercising the power and the respondent No.3 NCTL is a company and as per the Page 5 of 30 C/SCA/2930/2014 CAV JUDGMENT case of the petitioner, office bearers of this company have no power to frame any policy nor to assume statutory power which is otherwise to be undertaken by GPCB and even if such powers are possessed by respondent No.3, the Act is not permitting GPCB to delegate the statutory function to the company and as such, it is the case of the petitioner that entire exercise of taking of sample from the petitioner, sending it to the laboratory and even test reports etc. are the steps without the authority of law and the respondent No.3 - NCTL has not power to direct the notified area authority which does the act of municipally in GIDC area to disconnect the water connection and as such, by taking up a plea that parallel executive or adjudication function can be initiated or undertaken by respondent No.3 as having no authority of law. As a result of this, by making such kind of assertion in the petition, the aforesaid reliefs have been prayed before this Court.

2.4 After perusal of the contentions, this Court vide order dated 21.2.2014, was pleased to issue notice made it returnable on 26.3.2014 and thereafter, from time to time the matter has been adjourned for one reason or the other and after completion of the pleadings, it has come up for consideration before this Court on 9.3.2018, wherein at the request of learned advocates, extensive hearing has taken place and the matter was kept for CAV.

Page 6 of 30 C/SCA/2930/2014 CAV JUDGMENT

2.5 Mr.M.M.Saiyed, learned advocate has represented the petitioner, whereas Mr.R.D.Dave, learned advocate has represented the respondent No.1, Ms.Dharmishtha Raval for Mrs. Kalpana Raval, learned advocate for respondent No.2 and respondent No.3 was represented by Mr.Abhishek Mehta, learned advocate and on behalf of respondent No.4, Mr.Utkarsh Sharma, learned AGP has appeared.

3. The main plank of the arguments and the submissions of Mr.M.M.Saiyed, learned advocate appearing for the petitioner is that action on the part of respondent No.3 company is nothing but an act without authority of law and, therefore, right from inception, since the steps are impermissible under the law, the same are required to be nullified. Learned advocate has further contended that respondent No.3 company has not been entrusted with the power under the provisions of the relevant Water Act and parallelly, cannot usurp the statutory function which is otherwise to be undertaken by the statutory authority, namely GPCB. It has been contended that this taking up of a sample at night hours and sending it to the testing laboratory is not a recognized power under the statute and even steps are not permissible with GPCB and when that be so, it is hardly justifiable on the part of respondent No.3 to initiate such steps. Learned advocate has further submitted that the power is conferred only GPCB and this adjudicating machinery is not to be undertaken Page 7 of 30 C/SCA/2930/2014 CAV JUDGMENT by respondent No.3 By drawing attention to the relevant papers from the present petition, it has been contended that GPCB, a creation of Statute, cannot redelegate the power to respondent No.3 and solely it has to act on its own independent function. Section 21 of the Water Act has got a specific procedure and accordingly, even if GPCB has to take sample then, it has to take in that manner. By relying upon a decision reported in AIR 1986 DELHI 152, a reference is made to substantiate this contention and ultimately, has further contended that membership cannot be insisted upon by respondent No.3 as a compulsory measure. Ultimately, to make this stand clear, the references have been made to some of the relevant documents contained in the proceeding. With a view to insist for issuance of writ of quo warranto, it has been contended that the Directors representing the industries to NCTL company are either the members or office bearers of Ankleshwar, Panoli and Jaghadiya Industrial Association. The election to the post of President, General Secretary etc. in industrial association results into the two groups and some time the supporter of looser group in industrial association are to be targeted through NCTL and that is how by usurping the power of GPCB, the respondent No.3 is heavily acting as a power charge authority against the petitioner unit and like.

3.1 Learned advocate for the petitioner has further contended that object of respondent No.3 is to take Page 8 of 30 C/SCA/2930/2014 CAV JUDGMENT the activities such as waste land reclamation, to undertake and promote activities for creation of public awareness etc. etc. and these objects are to be fulfilled by way of framing a policy known as 'Monitoring and Controlling Policy' in which the powers are entrusted to the employees for taking sample, sending it to the laboratory etc. In furtherance of such powers which are being exercised, learned advocate has submitted that respondent No.3 has regularly revised the Monitoring and Control Policy No.10 and then, on 11.12.2013 another Monitoring Policy No.11 was also framed and while framing such policies, the respondent No.3 company is not backed by any statutory power. As a result of this, the writ of quo warranto deserves to be issued. Learned advocate has further pointed out that Articles of Association of respondent No.3 company has 21 directors, out of which 12 are to be appointed by GIDC, while remaining 9 are to be appointed from the industries and, therefore, by forming such kind of company, there is an attempt to usurp the statutory function. Hence, the writ of quo warranto deserves to be issued. No other submissions have been made.

4. Mr.R.D.Dave, learned advocate appearing on behalf of respondent No.1, has vehemently contended that present petition itself is not maintainable, as none of the fundamental rights are violated by GIDC and the petitioner has no preexisting right to make any right which is made in the petition. It has been Page 9 of 30 C/SCA/2930/2014 CAV JUDGMENT contended by Mr.Dave, learned advocate, that the petitioner has not come with clean hands before this Court and has committed a fraud with the GIDC by discharging effluent in the storm water lines time and again, despite giving specific undertaking not to discharge such in future. Still, however, as a part of repetitive act, the petitioner is a habitual offender in respect of such discharge of effluent in the storm water line. Even a specific apology letter has also been given assuring GIDC not to repeat the same in future, still, however, the petitioner continued to do the same and, therefore, at the instance of petitioner, no such equitable relief be given or even examined by this Court.

4.1 Mr.R.D.Dave, learned advocate, has further contended that respondent No.3 company which was originally known as 'Bharuch Ecoaqua Infrastructure Ltd.' was formed with assistance from the State Government in which GIDC has initially 49% equity which was subsequently raised actually to 51% which is clear from the GR dated 14.3.2008 produced along with affidavit at page108 and later on, mere nomenclature of the company was changed to Narmada Cleantech Limited which has been approved by the Government of India, Ministry of Corporate Affairs, for which the certificate has also been issued on 8.4.2011 and, therefore, it cannot be said that respondent No.3 is acting without the authority of law, in any manner. So much so that on Board of Directors of respondent No.3, out of 21 Directors, 12 Page 10 of 30 C/SCA/2930/2014 CAV JUDGMENT Directors are nominated by the GIDC which will include Vice Chairman and Managing Director of GIDC, Directors to be nominated by the State Government. The ViceChairman and Managing Director of GIDC will be Chairman of the company and ViceChairman will be elected by the Board. This mechanism in the management itself makes it clear that management of respondent No.3 is wholly and substantially controlled by GIDC and this respondent No.3 is nothing but, a limb of respondent No.1. It has been further contended that for the purpose of incorporating and to lookafter and manage the disposal of effluent being discharged by industrial unit, there is a joint participation of even industrial association with GIDC and the Government in managing respondent No.3 and, therefore, as a matter of fact, the respondent No.3 has right to control its members, especially for the disposal of effluents which affects the common people and necessary as declared by this Court in PIL. Thus, in the background of this fact, there is hardly any justification for the petitioner to seek a writ of quo warranto from this Court. Learned advocate has contended that this petitioner, who is proprietor of Mahesh Industries, has entered into an agreement specifically on 13.6.2008 with respondent No.3 company and has specifically agreed to abide by all the terms and conditions as a member of association and this agreement is undisputedly executed by the petitioner and by suppressing this material fact, in the year 2014, an attempt is made to seek a writ of Page 11 of 30 C/SCA/2930/2014 CAV JUDGMENT quo warranto from this Court. Even apart from this, having become the member, having agreed upon and executed the document which is continued over the period of almost more than 5 to 6 years, now it is not open for the petitioner to assail any action of respondent No.3 or even of respondent No.1 and even apart from this, even there is some element of grievance then, such grievance is arising out of contractual terms between respondent No.3 and its members and for that purpose, the writ jurisdiction is not an answer.

4.2 Mr.R.D.Dave, learned advocate, has further contended that on the contrary, there is a clear misrepresentation by the petitioner and suppression of material fact on the part of petitioner about some of the malafides and thereby, has made an attempt to misguide the Hon'ble Court and such an attempt is not required to be encouraged in any manner and, therefore, the writ petition deserves to be dismissed. On the contrary, this petition apart from questioning the authority of respondent No.3, is entailing a civil consequences arising out of the violation of contractual terms and also is in the realm of disputed question of fact and, therefore, in such a situation especially when there is a specific mechanism continued right from 2008, to which the petitioner itself was a part, no quo warranto to be exercised in such a manner, as has been prayed. On the contrary, such an attempt deserved to be curbed especially when this discharge of effluent of a Page 12 of 30 C/SCA/2930/2014 CAV JUDGMENT menace in the area affecting large number of population and habitation and is destroying all the environmental norms and, therefore, when petitioner himself is the violator of the said norms and the rules, at whose instance the extraordinary equitable jurisdiction may not be exercised. Accordingly, petition deserves to be dismissed with a heavy costs.

5. Mr.Abhishek Mehta, learned advocate appearing for respondent No.3, has also vehemently opposed the present petition and has drawn the attention to various contentions raised in the affidavitinreply which has been filed which is at Page95 onwards of the petition compilation. Mr.Mehta, learned advocate, has contended that this respondent No.3 company came to be established pursuant to the order passed by this Court dated 21.10.1999 in SCA No.4473 of 1997 which was a public interest litigation and the petitioner - Jayesh Nathubhai Patel himself had approached this Court raising a grievance against untreated effluent being discharged in river Narmada through natural creek, namely, Amlakhadi and, therefore, this respondent No.3 is created and set up for a good cause in response to the observations made by the aforesaid order and this has been set up and operated for controlling the final effluent treatment plant for imparting the polishing treatment to the liquid effluent of huge quantity approximately more than 40 Million liter per day being discharged by at least 1053 member industries located in the industrial areas of Panoli, Jhagadiya and Ankleshwar.

Page 13 of 30 C/SCA/2930/2014 CAV JUDGMENT

Mr.Mehta, learned advocate, has further pointed out that this is the purpose out of which this respondent No.3 is created is meant for either of public interest litigation and without establishing this kind of setup, these industries are not possible to be controlled. Learned advocate has further contended that approximately there are about 1053 member industries located in industrial areas - Panoli, Jhagadiya and Ankleshwar and out of these companies, approximately around 40 Million liters per day discharge is being made and this company has been established with an expenditure of Rs.131 crores (now Rs.165 crores) and is operating round the clock throughout the year so as to ensure that polluted liquid waste discharged in huge quantities by the member industries is retreated by respondent company as per the norms. It has also been pointed out that huge quantities of liquid waste being discharged by the member industries and retreated by respondent company as per the norms and made harmless and thereafter, disposed of by way of 45Km designated on shore pipeline and 10Km off shore pipeline in the Gulf of Cambay. That out of 131 crores, approximately 80 crores has been given by the Government of India by way of grantinaid under IIUS2003, the Government of Gujarat under (subsidy) and GIDC equity participation is at 51% and as such, this is the special mechanism which has been provided pursuant to the directions given by this Court in the PIL. When such kind of applaudable object is being undertaken right from 2008 and round the clock in the larger Page 14 of 30 C/SCA/2930/2014 CAV JUDGMENT public interest, the services are being provided to more than 1053 companies, at the instance of this consistent violator, the petition may not be entertained.

5.1 Mr.Mehta, learned advocate, has, on the contrary, submitted that the respondent company is engaged in preservation of the environment by providing this service to ensure that effluent discharged by the member industries during the course of its manufacturing activity is neutralized and disposed of in an environmental friendly manner as has been stated hereinbefore and in order to implement this project, all relevant NOCs consolidated consent and authorization to operate the plan has been taken already and in a perfectly lawful manner, the company is functioning in the larger interest. When this being so, there is hardly any justifiable reason for the petitioner to challenge in any form. On the contrary, learned advocate, has narrated in detail in Para.3.4, 3.5 and 3.6 and then, has contended that in the aforesaid background, even specific agreements have also been entered into between respondent No.3 and the member industries including the petitioner and such agreement is dated 13.6.2008 and since then, it is operative. The respondent No.3 company, according to Mr.Mehta, is also bound by the directions of this Court contained in an order dated 23.6.2011 passed in PIL and, therefore, it is not correct to indicate before the Court that action of respondent No.3 is without the Page 15 of 30 C/SCA/2930/2014 CAV JUDGMENT authority of law.

5.2 Mr.Mehta, learned advocate, has further contended that on the contrary, the petitioner company was a defaulter, who originally claimed that they have zero discharge unit but, specifically caught in discharging in the main drain meant for domestic effluent in the utmost discreet manner which was evidently found. As a result of this, an order was passed against the petitioner on 6.11.2013. Not only this, even subsequently also the petitioner was caught creating pollution and acting in utter violation of the agreement and the monitoring policy and, therefore, this petitioner is repeated violator of the norms and terms of the policy and, therefore, the petitioner being habitual in indulging in unauthorized discharge activity, no equitable relief can be given to the petitioner and this is, on the contrary, a device for seeking writ of quo warranto after having entered into the agreement, after having violated the norms and the terms of the policy and after sustaining penalties on more than two occasions and, therefore, the conduct of the petitioner itself is suggesting that this petition is filed for the oblique motive. The details regarding activities of the petitioner has been narrated at length and, therefore, ultimately contended that in such a situation, there is hardly any justification for the petitioner to maintain this petition. It has been further contended by Mr.Mehta, learned advocate, that respondent No.3 has a specific power to frame the Page 16 of 30 C/SCA/2930/2014 CAV JUDGMENT policy and it cannot be said that without any authority it has assumed the statutory function. On the contrary, as stated above, the formation of the company is having full lawful force and it cannot be said to be acting in any manner without the authority of law and by detailing out the relevant Government Resolutions and various documents which are attached with affidavitinreply, it has been contended that no case is made out by the petitioner and accordingly, the petition may be dismissed.

5.3 Mr.Mehta, learned advocate, has further drawn the attention to the relevant agreement which has been executed between the petitioner and respondent No.3 company itself on 13.6.2008 which is not in dispute at all and in view of clause (4), in case of any violation in any manner, the issue is to be referred to arbitration under the provisions of the Arbitration and Conciliation Act,1996 and, therefore, this petition is nothing but, a device to avoid a specific mechanism which has been provided to control the pollution and, therefore, this malafide intent may not be allowed to be encouraged under the guise of writ of quo warranto. A public interest litigation has also been entertained by this Court which order dated 23.6.2011 is also brought to the notice of this Court reflecting on Page144 onwards in which also there is a categorical mention with regard to the recognition of step of respondent No.3 company against and in the direction of end of pollution and, therefore, when that be so, there is hardly any Page 17 of 30 C/SCA/2930/2014 CAV JUDGMENT justification for seeking the writ of quo warranto by the petitioner. To strengthen the submission further, Mr.Mehta, learned advocate, has hurriedly drawn the attention of this Court to the documents related to violation by petitioner company, in which the analysis report indicating on page148 onwards is clearly indicating that the petitioner is a repeated violator and these facts have been suppressed from the Court. Even the petitioner was dealt with by the competent authority during the appeal and during the appeal also, the hearing was extended and the petitioner was penalized and, therefore, this attempt on the part of petitioner is nothing but, a serious step to misguide the Hon'ble Court and, therefore also, the petition being devoid of merit, deserves to be dismissed in limine.

6. Ms.Dharmishtha Raval, learned advocate for Mrs.Kalpana Raval, learned advocate appearing for respondent No.2, has also opposed the petition and drawn the attention of this Court to the relevant paragraphs which are contained in the reply filed by respondent No.2 which is reflecting on Page192 onwards, more particularly Para.6, 7 and 8 which reads as under :

"6. It is further submitted that as per environment laws the entities are required to ensure that the effluents discharged by them as per the laid down norms. The effluent treatment plants are set up to ensure that all the effluents getting discharged are treated and only those effluents with which are the Page 18 of 30 C/SCA/2930/2014 CAV JUDGMENT acceptable norms are discharged. In the present case effluents are being discharged into deep sea through FETP and 53 kms underground pipeline. Concerns regarding the same were raised before this Hon'ble High Court by way of PIL wherein several Orders were passed.

7. In order to help the members a common effluent treatment plant was set up by the Respondent No. 3 and various entitled in that area became members of the effluent treatment plant incorporated by the Respondent no. 3. Such membership ensured that the facility of the getting effluent treated was available without individual members having to setup full fledge effluent treatment plant at their cost. Such effluent treatment plants are expensive and it is not unknown that Common Effluent plant is set up wherein various members around that area utilize the benefit of such a plant.

8. It is further submitted that this respondent has neither given away its powers or has stopped monitoring of various entities that are discharging the effluent into deep sea through FETP and 53 Ms underground pipeline."

7. In view of aforesaid situation which is prevailing on record, the ultimate request which has been made is to dismiss the petition with heavy cost in this peculiar background of circumstance :

8. Having heard the learned advocates appearing for the respective parties and having gone through the detailed material on record, prima facie, it seems that the petitioner is a consistent violator of the norms pertaining to the environment and this challenge is an afterthought challenge appears to be misdirecting the Court from the core issue and appears to be an attempt to either thwart the process Page 19 of 30 C/SCA/2930/2014 CAV JUDGMENT of action against the petitioner or to deviate the attention of the authorities from its own violation in respect of the discharge of effluent unauthorizedly. Some of the circumstances which are reflecting hereinafter are not possible to be ignored by this Court while exercising the extraordinary equitable jurisdiction :

(1) A specific stand which has been taken by respondent No.3 which practically appears to be not cogently controverted is that respondent No.3 company has been established pursuant to the order passed by this Court dated 21.10.1999 in SCA No.4473 of 1997 and in respect of the observations, the company has been set up with a specific purpose of establishing and operating a final effluent treatment plant. It is also not practically disputed that there are as many as 1053 member industries located in the industrial areas of Panoli, Jaghadiya and Ankleshwar and approximately, 40 Million liter per day being discharged by these industries. It is also noted down specifically that huge expenditure to the extent of nearly 165 crores have been incurred in setting up this system of final effluent treatment plant to be monitored by respondent No.3 company and this plant has been set up with the assistance of Government of India grantin aid under IIUS 2003 with the assistance of subsidy by the Government of Gujarat and equity participation of 51% by GIDC. It is also not in Page 20 of 30 C/SCA/2930/2014 CAV JUDGMENT dispute that this very petitioner is a party to a specific agreement which came to be entered into with respondent No.3 way back on 13.6.2008 and it was obligatory on the part of petitioner to abide by such terms of the agreement.

(2) Further, from the pleadings, it has been noticed by this Court that time and again this very petitioner was caught for the purpose of violation of the norms of the policies which have been undisputedly formulated twice which were not under challenge and it was also found specifically that after extending specific opportunities to the petitioner, the petitioner had, on number of times, found to have violated and in a discreet manner was in the habit of discharging effluent which has got immense impact on the general public. He is found chronic defaulter and some of the relevant orders have also been forming part of the present record.

(3) So far as the constitution of this respondent No.3 company is concerned, as stated above, a specific set up is created with the aid and assistance of the order passed in PIL by this Court and the Board of Directors were also found to be 21 in numbers, 12 Directors to be nominated by GIDC which will include the Vice Chairman and Managing Director of GIDC and other Directors are to be nominated by the State of Page 21 of 30 C/SCA/2930/2014 CAV JUDGMENT Gujarat and, therefore, the management of respondent No.3 is wholly and substantially controlled by GIDC and is essentially created for controlling this larger number of industrial units and with a view to see that there discharge may not affected to general public.

When such kind of specific mechanism is provided, there is hardly any reason for the petitioner to assail the establishment of respondent No.3 company.

(4) One another fact which cannot be unnoticed is that right from 2008, pursuant to the agreement, the petitioner is subjected to the terms and norms of the policy and is answerable to the steps being taken by respondent No.3 and uptill now, till filing of this petition for a period of 5 to 6 years, the petitioner has been monitored by this very respondent No.3 company and at no point of time, this kind of challenge is made over a period of time and once having submitted to the jurisdiction and authority of respondent No.3 to challenge the said authority after almost a period of 5 to 6 years, cannot be said to be bonafide, more particularly when during the span of 5 to 6 years the petitioner was subjected to several punishments for violation and, therefore, this Court is of the considered opinion that equitable jurisdiction is not possible to be exercised by such kind of Page 22 of 30 C/SCA/2930/2014 CAV JUDGMENT elements, who are outrightly violating the norms for which they are under an obligation to obey. This being the situation, at the instance of petitioner this Court is not inclined to entertain the petition and exercise the jurisdiction. Prima facie, it has been found by this Court that respondent No.3 is in co relation with other authorities, is acting with full force of authority and there is no violation of any nature, as has been pointed out.

(5) A further fact to be taken into consideration is that if the agreement in question which is reflecting on Page141 onwards, to which this very petitioner is a party, there is a specific clause contained under the said agreement, in which the petitioner himself is bound and subjected to monitoring which is reflecting from clause (2) of the said agreement. Apart from this, even looking to the clause (4) of the said agreement, in case of any dispute or difference, there is a specific mechanism provided for referring the matter to the arbitration and as such, this attempt of questioning the authority of respondent No.3 after almost a period of 5 to 6 years is nothing but an avoidance of specific terms of the agreement and it is found that without being member of this industrial association, the petitioner is not in a position Page 23 of 30 C/SCA/2930/2014 CAV JUDGMENT to come out from the clutches of respondent No.3 in respect of monitoring itself. As a result of this, such a fake attempt is made to invoke extraordinary jurisdiction of this Court. The contentions as such which have been raised are not impressed upon the Court and the Court is not inclined to exercise the jurisdiction.

(6) Another circumstance which is material which cannot be unnoticed by this Court is a decision dated 21.6.2011 delivered in SCA No.12823 of 2010 reflecting on Page144 which has also clearly attracted the submission made by the respondent authorities, in view of the fact that even the Division Bench of this Court has recognized the existence of respondent No.3 and has allowed the extension of time to take appropriate measure to ensure that discharge standard prescribed for waste water is to be maintained. When the Division Bench of this Court has itself recognized the existence and creation of respondent No.3, there is hardly any circumstance shown by the petitioner to take a view in favour of the petitioner. Ultimately, from the entire bunch of the paperbook it is found that there is a lame excuse tried to be projected by the petitioner to come out from monitoring and to thwart the process which is being regularly undertaken by respondent authorities in correlation to each other, this Page 24 of 30 C/SCA/2930/2014 CAV JUDGMENT Court is not inclined to accept any plea, more particularly when material circumstance about conduct of petitioner himself has not been projected by the petitioner and there appears to be an attempt to suppress the material facts from this Court.

9. This Court is of the considered opinion that detailed explanation given by respondent authorities by way of their respective affidavits, the plea that respondent No.3 is acting without the authority of law is not at all possible to be taken to its logical end and on the contrary, the authority is being endorsed by more than 2 occasions by this Court and the existence of respondent No.3 appears to be in larger interest of public at large and, therefore, when such confrontation between private interest and the public interest is reflecting, the Court is not inclined to exercise its extraordinary jurisdiction, having found prima facie that there is no case made out by the petitioner in respect of seeking a writ of quo warranto.

10. This entire record of the present proceedings has revealed that petitioner was a party to the agreement right from 2008 as during the span, the petitioner has violated the norms pertaining to discharge of effluent on several occasions and also subjected to penalty on various occasions and though the petitioner was fully aware about the previous proceedings, by virtue of which the respondent No.3 Page 25 of 30 C/SCA/2930/2014 CAV JUDGMENT is set up, still, by filing such a brief petition, an attempt is made seeking a writ of quo warranto and consequential reliefs are nothing but an attempt to misguide the Court by not disclosing certain material details. Under the circumstance, this Court is of the opinion that present petition not only being devoid of merit but, deserves to be dismissed for such attempt, with appropriate cost.

11. The reliefs which are sought are, on the contrary, indirectly trying to come out from a special mechanism of adjudicating machinery for the purpose of dealing with the petitioner in respect of its own violations and under the garb of quo warranto writ, the petitioner wants to bypass the mechanism which has been provided for such violations, this Court is not inclined to encourage such an attempt which is made with dual purpose, especially when agreement contains specific mechanism to ventilate the grievance under this disputed question of fact and the nondisclosure of material facts, the extraordinary jurisdiction is not possible to be exercised and the Court, rather, is not inclined to exercise the jurisdiction especially when the petitioner himself is not having clean hands and, therefore, the petition being thoroughly misconceived deserves to be dismissed.

12. This Court is mindful of the circumstance that a writ of quo warranto is a special writ which cannot Page 26 of 30 C/SCA/2930/2014 CAV JUDGMENT be issued so lightly and this is not a case in which such kind of writ to be issued, especially when creation of respondent No.3 is pursuant to the order passed by this Court and pursuant to the Government Resolution and with an aid and assistance of Government of India as well as Government of Gujarat. Hence, no case of any nature is made out by the petitioner to grant any relief as prayed for by the petitioner.

13. The relevant observations in respect of issuance of writ of quo warranto since kept in mind deserve to be quoted hereinafter :

"18. From the aforesaid exposition of law it is clear as noon day that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority. While dealing with the writ of quo warranto another aspect has to be kept in view. Sometimes a contention is raised pertaining to doctrine of delay and laches in filing a writ of quo warranto. There is a difference pertaining to personal interest or individual interest on one hand and an interest by a citizen as a relator to the court Page 27 of 30 C/SCA/2930/2014 CAV JUDGMENT on the other. The principle of doctrine of delay and laches should not be allowed any play because the person holds the public office as a usurper and such continuance is to be prevented by the court. The Court is required to see that the larger public interest and the basic concept pertaining to good governance are not thrown to the winds."

14. Yet another circumstance which is clearly visible from the record is that the Court is also mindful of the scope of exercise of extraordinary jurisdiction which is equitable in nature and as such, this is not a case found in which such exercise of jurisdiction is possible to be exercised. The Court has an assistance of the relevant observations of the Apex Court Satya Pal Anand v. State of Madhya Pradesh & Ors., reported in (2016) 10 SCC 767, relevant observations of which are in Para.25 and 26 which are reproduced hereinafter:

"25. It is a well established position that the remedy of Writ under Article 226 of the Constitution of India is extraordinary and discretionary. In exercise of writ jurisdiction, the High Court cannot be oblivious to the conduct of the party invoking that remedy. The fact that the party may have several remedies for the same cause of action, he must elect his remedy and cannot be permitted to indulge in multiplicity of actions. The exercise of discretion to issue a writ is a matter of granting equitable relief. It is a remedy in equity. In the present case, the High Court declined to interfere at the instance of the appellant having noticed the above clinching facts. No fault can be found with the approach of the High Court in refusing to exercise its writ jurisdiction because of Page 28 of 30 C/SCA/2930/2014 CAV JUDGMENT the conduct of the appellant in pursuing multiple proceedings for the same relief and also because the appellant had an alternative and efficacious statutory remedy to which he has already resorted to. This view of the High Court has found favour with Justice Dipak Misra. We respectfully agree with that view.

26. The other view of Justice V. Gopala Gowda, however, is that it was the duty of the High Court to answer the matters in issue because of the unilateral registration of the Extinguishment Deed by the Society without authority and a nullity. Ordinarily, if the party had not resorted to any other remedy provided by law and had straightway approached the High Court to question the action of the statutory Authority of registering a document improperly and in particular in disregard of the prescribed procedure, that would stand on a different footing. In the present case, however, the appellant not only entered into a compromise deed with the Society and the subsequent purchaser but also resorted to statutory remedy. Having entered into a compromise deed, it is doubtful whether the appellant can be heard to complain about the irregularity in the registration of the Extinguishment Deed, if any. It is noticed that the appellant has not disputed the execution of the compromise deed, nor has he paid any heed to the notice given by the other party to refund the amount accepted by him in furtherance of the compromise deed. No Court can be party to a speculative litigation much less the High Court in exercise of writ jurisdiction. Having said this it must necessarily follow that the Writ Petition filed by the appellant deserved to be dismissed, as was rightly dismissed by the High Court."

Page 29 of 30 C/SCA/2930/2014 CAV JUDGMENT

15. In view of aforesaid circumstance and in view of the situation prevailing on record with respect to the present reliefs which are sought, in the opinion of the Court, no case is made out by the petitioner. The petition being devoid of merits, deserves to be dismissed and the same is accordingly dismissed. Notice is discharged. Interim relief, if any, granted earlier stands vacated.

(A.J. SHASTRI, J) V.J. SATWARA Page 30 of 30

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Gujarat High Court