Madras High Court
Arkay Energy (Rameswaram) Limited vs Tamil Nadu Pollution Control Board on 26 August, 2021
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
WP(MD).No.15532 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.08.2021
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.P.(MD).No.15532 of 2021 and
WMP(MD).Nos.12452 to 12454 of 2021
Arkay Energy (Rameswaram) Limited,
rep. by its authorised signatory,
No.20 (Old No.29), Chamiers Road,
Nandanam,
Chennai – 600 035. : Petitioner
Vs.
1.Tamil Nadu Pollution Control Board,
rep. by its Chairman,
No.76, Mount Salai,
Guindy, Chennai.
2.Tamil Nadu Transmission Corporation Ltd.,
(TANTRANSCO)
rep. by its Chairman,
NPKR Ramasamy Maaligai,
144, Anna Salai,
Chennai – 600 002.
3.Tamil Nadu Generation and Distribution Company Ltd.,
(TANGEDCO).
Rep. by the Chairman Cum Managing Director,
No.144, Anna Salai,
Chennai – 600 002.
1/10
https://www.mhc.tn.gov.in/judis/
WP(MD).No.15532 of 2021
4.Executive Engineer / Operations,
230/110 KV Substation,
Valuthur,
Ramanathapuram – 623 536. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India to issue a Writ of Certiorari to call for the records pertaining to the
impugned order dated 24.08.2021 issued by the 1st respondent bearing
proceeding No.T2/TNPCB/F.0147RMD/RLRMD/W&A/2020 and quash
the same.
For petitioner : Mr.M.S. Krishnan, Senior Counsel,
for M/s. Sravabhauman Associates
For respondents : Mr. Veerakathiravan, Senior Counsel
Asst. by P. Subbaraj – R1
Ms. M. Rajeswari for
Mr.S.M.S.Johny Basha R2 to R4
ORDER
The petitioner challenges an order dated 24.08.2021 of the Tamil Nadu Pollution Control Board, whereby closure of the petitioner's operations was ordered. In addition, disconnection of electricity supply was ordered to be effected.
2. The respondents are represented and raise a preliminary objection as to the maintainability of the writ petition. Consequently, the 2/10 https://www.mhc.tn.gov.in/judis/ WP(MD).No.15532 of 2021 said issue has to be dealt with first. The contention on behalf of the respondents is that jurisdiction over this dispute is vested with the National Green Tribunal in terms of Section 16 of the National Green Tribunal Act, 2010 (the NGT Act). In particular, it is contended that such jurisdiction extends to directions issued by the Pollution Control Board under Section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974. The respondents also relied upon the judgment of the Hon'ble Supreme Court in Bhopal Gas Peedith Mahila Udyog Sangathan and others Vs. Union of India and others reported in 2012(8) SCC 326, and, in particular, paragraphs 40 and 41 thereof. In the said judgment, the Hon'ble Supreme Court concluded that issues covered by Schedule I of the NGT Act should be instituted and prosecuted before the National Green Tribunal. The respondents point out that Schedule I includes the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act) and the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act). Two Division Bench judgments of this Court are also placed in support of the contention that this Court should decline to exercise jurisdiction. In specific, the judgment in W.P(MD).No.2285 of 2016, dated 09.09.2016, and that in W.P(MD)SR.No.133839 of 2019 dated 04.01.2021 are relied on. In 3/10 https://www.mhc.tn.gov.in/judis/ WP(MD).No.15532 of 2021 W.P(MD).No.2285 of 2016, the Division Bench of this Court referred to the judgment of the Hon'ble Supreme Court, which was adverted to earlier, and concluded on such basis that in matters covered under the Schedule I of the NGT Act, the Court should not entertain a writ petition.
3. These contentions are refuted by the petitioner. The petitioner contends that he has levelled allegations of mala fide conduct against the TANGEDCO and the Tamil Nadu Pollution Control Board. Consequently, it is stated that such matters cannot be carried to the National Green Tribunal. In addition, reliance is placed on the judgment of the Hon'ble Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, reported in 1998 (8) SCC 1, for the proposition that the powers under Article 226 of the Constitution of India are only subject to self-imposed fetters.
4. The order impugned in the present case is an order issued under the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974. Therefore, there is no doubt that these are included in Schedule I of the NGT Act. Ordinarily, 4/10 https://www.mhc.tn.gov.in/judis/ WP(MD).No.15532 of 2021 there is no doubt that such matters should be canvassed before the National Green Tribunal. The judgment of the Hon'ble Supreme Court instructs that such matters should be decided by the National Green Tribunal so as to ensure that there is no conflict between the views of the High Court and the National Green Tribunal. The ratio of the said judgment has also been followed in the two Division Bench judgments cited above. However, it should be noted that a constitutional power is only subject to self-imposed restraints.
5. In the case at hand, the petitioner has approached this Court against the order of closure and disconnection of power supply. The relevant order is dated 24.08.2021 and it is stated that such orders were served on the petitioner on 26.08.2021 (i.e. today). The orders are extremely drastic in nature and bring the operation of the unit to a grinding halt. It is submitted that the petitioner is a captive power generation unit servicing about 111 customers and employing significant manpower.
6. It is pointed out by learned Senior Counsel for the petitioner that it would take at least 10 days to approach the National Green Tribunal 5/10 https://www.mhc.tn.gov.in/judis/ WP(MD).No.15532 of 2021 in order to obtain interim relief. In these circumstances, I am of the view that the writ petition is maintainable and it cannot be said that this Court is divested of jurisdiction.
7. At the same time, a specialised Tribunal has been constituted to consider matters of this kind. In such circumstances, it would not appropriate for this Court to finally decide a dispute of this nature. In such event, it is also possible that there could be conflict of views and the Hon'ble Supreme Court has advised restraint primarily to preclude such conflict if both the High Court and the National Green Tribunal exercise jurisdiction with regard to such matters.
8. Turning to the merits of the matter, the primary contention of the petitioner is that the show cause notices were issued on 05.07.2021 in respect of an unit which obtained the consent to operate in 2006. The discrepancies or short comings pointed out in such show cause notices relate to not having an Environmental Management Cell and not dealing with hazardous waste category 5.2 – oil soaked cotton-in the manner prescribed. It is further submitted that such show cause notices were 6/10 https://www.mhc.tn.gov.in/judis/ WP(MD).No.15532 of 2021 responded to. In particular, reference is made to a reply submitted to such show cause notices on 12.08.2021. In such reply, the petitioner has set out the measures taken to comply with the shortcomings specified in such show cause notices. It is further pointed out by the petitioner that such reply has not even been referred to in the impugned orders.
9. Upon consideration thereof, a prima facie case is made out especially because the impugned orders are disproportionate to the discrepancies indicated. On this issue, it is significant to underscore that the petitioner obtained the consent to operate in 2006 and these issues were not raised by the Tamil Nadu Pollution Control Board earlier. Besides, while Section 33-A of the Water Act and Section 31-A of the Air Act confer the power of closure, the existence of power does not always justify the exercise thereof especially when less drastic alternatives are available. In addition, it appears prima facie that the measures taken by the petitioner to remedy such discrepancies have not been taken note of. Therefore, there will be an order of interim stay of the impugned orders for a period of 10 days from the date of receipt of a copy of this order. 7/10 https://www.mhc.tn.gov.in/judis/ WP(MD).No.15532 of 2021
10. The respondents points out that the impugned order has already been implemented by disconnecting the power supply. In any event, the respondents shall permit the petitioner to operate the unit for a period of 10 days and also restore the electricity supply for such purpose before end of day tomorrow. The petitioner is directed to approach the jurisdictional National Green Tribunal in the meantime and seek orders therefrom. It is made clear that the interim protection granted by this Court will dissolve ipso facto upon the 10 day period expiring. It is also made clear that the observations made herein are not intended to influence the National Green Tribunal in any manner if the petitioner carries the matter to the National Green Tribunal.
11. W.P(MD).No.15532 of 2021 is disposed of on these terms without any order as to costs. Consequently, the connected WMP(MD).Nos.12452 to 12454 of 2021 are closed.
26.08.2021 trp/pkn Index : yes / No Internet : yes / No 8/10 https://www.mhc.tn.gov.in/judis/ WP(MD).No.15532 of 2021 To
1.Chairman, Tamil Nadu Pollutionn Control Board, No.76, Mount Salai, Guindy, Chennai.
2.Chairman, Tamil Nadu Transmission Corporation Ltd., (TANTRANSCO) NPKR Ramasamy Maaligai, 144, Anna Salai, Chennai – 600 002.
3.The Chairman Cum Managing Director, Tamil Nadu Generation and Distribution Company Ltd., (TANGEDCO).
No.144, Anna Salai, Chennai – 600 002.
4.Executive Engineer / Operations, 230/110 KV Substation, Valuthur, Ramanathapuram – 623 536.
9/10 https://www.mhc.tn.gov.in/judis/ WP(MD).No.15532 of 2021 SENTHILKUMAR RAMAMOORTHY, J., trp/pkn W.P.(MD).No.15532 of 2021 and WMP(MD).Nos.12452 to 12454 of 2021 26.08.2021 10/10 https://www.mhc.tn.gov.in/judis/