Rajasthan High Court - Jodhpur
Dinesh Kumar Maheshwari vs Union Of India & Ors on 25 October, 2013
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
SBCWP NO.3842/2004
Dinesh Kumar Maheshwari vs. UOI & Ors & 18 other connected writ petitions
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
1. S.B.CIVIL WRIT PETITION NO.3842/2004
Dinesh Kumar Maheshwari vs. UOI & Ors
2. S.B.CIVIL WRIT PETITION NO.2040/2008
Rathore Hotel & Tours Pvt. Ltd. Vs. State & Ors.
3. S.B.CIVIL WRIT PETITION NO.6483/2011
M/s Mahabaleshwar Proc. House
vs.
Balotra Water Pollution Con. & RFT & Ors.
4. S.B.CIVIL WRIT PETITION NO.6484/2011
M/s Tripti Industries
vs.
Balotra Water Pollution Con. & RFT & Ors.
5. S.B.CIVIL WRIT PETITION NO.6980/2011
M/s Rajlaxmi Processors
vs.
Balotra Water Pollution Con. & RFT & Ors.
6. S.B.CIVIL WRIT PETITION NO.6494/2011
M/s Shri Bhuwal Processors
vs.
Balotra Water Pollution Con. & RFT & Ors.
7. S.B.CIVIL WRIT PETITION NO.6496/2011
M/s Milan Mills
vs.
Balotra Water Pollution Con. & RFT & Ors.
8. S.B.CIVIL WRIT PETITION NO.6481/2011
M/s Sarveshwar Processors
vs.
Balotra Water Pollution Con. & RFT & Ors.
9. S.B.CIVIL WRIT PETITION NO.6485/2011
M/s Baituwala Industries
vs.
Balotra Water Pollution Con. & RFT & Ors.
10. S.B.CIVIL WRIT PETITION NO.6495/2011
M/s Sarveshwar Udyog
vs.
Balotra Water Pollution Con. & RFT & Ors.
11. S.B.CIVIL WRIT PETITION NO.6984/2011
M/s Shri U.P.Processing House
vs.
Balotra Water Pollution Con. & RFT & Ors.
SBCWP NO.3842/2004
Dinesh Kumar Maheshwari vs. UOI & Ors & 18 other connected writ petitions
2
12. S.B.CIVIL WRIT PETITION NO.6498/2011
M/s Mangal Processing Mills
vs.
Balotra Water Pollution Con. & RFT & Ors.
13. S.B.CIVIL WRIT PETITION NO.6497/2011
M/s Manasmani Textile
vs.
Balotra Water Pollution Con. & RFT & Ors.
14. S.B.CIVIL WRIT PETITION NO.6691/2011
M/s Sumra Processing House
vs.
Balotra Water Pollution Con. & RFT & Ors.
15. S.B.CIVIL WRIT PETITION NO.6985/2011
M/s Mamta Industries
vs.
Balotra Water Pollution Con. & RFT & Ors.
16. S.B.CIVIL WRIT PETITION NO.6576/2011
M/s Heena Felth
vs.
Balotra Water Pollution Con. & RFT & Ors.
17. S.B.CIVIL WRIT PETITION NO.4053/2013
Vijay Dangi vs. UOI & Ors.
18. S.B.CIVIL WRIT PETITION NO.6696/2012
Camus Stones Pvt. Ltd. vs. UOI & Ors.
19. S.B.CIVIL WRIT PETITION NO.4576/2013
Tripura Marble & Granite vs. UOI of Ors.
Date of Order : 25th October, 2013
PRESENT
HON'BLE MR JUSTICE VIJAY BISHNOI
Mr M.S.Singhvi, Sr. Advocate assisted by
Mr Amit Tatia |
Mr Anjay Kothari |
Mr DD Thanvi |
Mr Sunil Beniwal |
Mr Vineet Dave | for the petitioners
Mr Manish Shishodia |
Mr Vikas Balia |
Mr Ravi Bhansali |
Mr M.A.Siddiqui | for the respondents
Mr R.K.Soni |
Mr Tribhuvan Gupta |
Mr Ashok Chhangani |
Mr Arpit Bhoot |
SBCWP NO.3842/2004
Dinesh Kumar Maheshwari vs. UOI & Ors & 18 other connected writ petitions
3
BY THE COURT:
Learned counsels for the parties submit that identical writ petitions have already been transferred by the Division Bench of this Court upon a reference made by this Court to National Green Tribunal under the provisions of the National Green Tribunal Act, 2010 and they further submit that the present writ petitions may also be transferred to the National Green Tribunal in terms of the Division Bench order of this Court dated 01.10.2013 in a batch of 58 writ petitions viz. D.B.Civil Writ Petition No.8074/2010 - M/s Laxmi Suiting vs. State of Rajasthan & Ors. and other connected writ petition, the operative portion of which is reproduced hereunder:
"Considering the ambit and expanse of the definition of the expressions "environment" and "substantial question relating to environment" as engrafted in Section 2(c) and 2(m) respectively, we are unable to persuade ourselves to conclude that any constricted approach to scuttle the otherwise attributed wide jurisdiction of the learned Tribunal is either envisaged by the Parliament or is intended. Not only the environment includes water, air and land as defined and their inter-relationship alongwith human beings, other living creatures, plants, micro-organism and property, the substantial question relating to environment includes amongst others the eventualities set out in clauses (i) and (ii) of section 2(m) of the Act. The definition "substantial question relating to environment" as provided in section 2(m) is an inclusive one and by no means can be ascribed a connotation to limit the scope and sphere thereof. Apropos the factual SBCWP NO.3842/2004 Dinesh Kumar Maheshwari vs. UOI & Ors & 18 other connected writ petitions 4 backdrop of the legislation and the salubrious accomplishments thereof as intended, any endeavour to muzzle the legislatively intended contour thereof would be antithetical thereto and cannot receive judicial imprimatur. A purposive interpretation has to be essentially provided to the relevant provisions of the Act so as to facilitate the wholesome implementation of its enjoinments lest the same is rendered otiose. The words contained in Section 14 delineating the jurisdiction of the learned Tribunal therefor have to be assigned the desired flexibility and amplitude to achieve the objectives thereof. Section 16 by no means ousts or regulates or circumscribes the ambit of Section 14.
The reliefs grantable by the learned Tribunal and enlisted in Section 15 are also couched in compendious terms with adequate discretion to the learned Tribunal to mould the same within the framework thereof. The reliefs contained in clauses (a), (b) and (c) of Section 15 (1) therefore do not admit of literal interpretation to circumvent the otherwise intended wide ambit thereof.
Though the Act does not contain any provision in particular mandating transfer of any pending case or proceeding otherwise within the purview of the jurisdiction of the learned Tribunal to it, having regard to the framework thereof and the interplay of the relevant provisions, with the Tribunal as the envisaged fora to settle the disputes involving substantial questions relating to environment, in our view, the non- existence thereof (provision of transfer) is suggestive of impermissibility of such transfer.
To reiterate, the Act has been given an over- riding effect. Though the same per se would not oust the jurisdiction of the superior courts contemplated by the Constitution of India, the plea of inadequacy or inefficacy of the remedy provided by the Act does not weigh with us. The reference of Articles 323A and 323B of the Constitution of India and the enactments made SBCWP NO.3842/2004 Dinesh Kumar Maheshwari vs. UOI & Ors & 18 other connected writ petitions 5 thereunder ipso facto also do not, in our estimate, outweigh the otherwise unmistakable edict of the Act and the inbuilt exclusion of the jurisdiction of the civil courts in matters within the purview of the learned Tribunal for its adjudication. The contention that this Court is beyond the concept of civil court and thus, the provisions of the Act do not apply to the proceeding under Article 226 of the Constitution of India is to be recorded only to be rejected. There is no repugnance or conflict between the provisions of the Act and the jurisdiction of the learned Tribunal outlined thereby with that of the superior courts under the Constitution of India. No ouster of the writ jurisdiction of this Court as well is either conceived of or intended. This, however, does not detract from the necessity of transfer of the proceedings also under Article 226 of the Constitution of India to the learned Tribunal in view of the avowed mission of the Act and for the settlement of disputes relating to environment with suitable reliefs as a corollary thereof.
It has been contended on behalf of the Board in its pleadings that the facts involved pertain to water pollution due to discharge of sewage and untreated trade effluent by the industries involved. Not only these outrages are due to conscious violations of the Act of 1974 and other environmental laws, remedial actions taken by it (Board) form the subject matter of challenge in the instant writ proceedings as well. Accusation of environmental pollution and ecological damage has been made. Having regard to the definitions of "environment" and "substantial question relating to environment" as adverted to hereinabove, we are thus of the unhesitant opinion that substantial questions relating to environment and arising out of the implementation of the enactments amongst others the Act of 1974 is involved in the proceedings in hand warranting transfer of the cases to the learned Tribunal.
SBCWP NO.3842/2004Dinesh Kumar Maheshwari vs. UOI & Ors & 18 other connected writ petitions 6 The Hon'ble Apex Court in Bhopal Gas Peedith Mahila Udyog Sangathan and ors. V/s Union of India and ors. (supra) while dilating on the provisions and the scheme of the Act and the essentiality of transfer of proceedings as contemplated therein to the learned Tribunal, has propounded as hereunder:-
"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 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 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, NGT, created under the provisions of the NGT Act. The courts may be well advised to direct transfer of such cases to NGT in its discretion as it will be in the fitness of administration of justice."
Not only the text of the above quoted extract would evince a mandate by their Lordships to transfer matters covered by the provisions of the Act to the learned Tribunal whether pending prior to the coming SBCWP NO.3842/2004 Dinesh Kumar Maheshwari vs. UOI & Ors & 18 other connected writ petitions 7 into force of the Act or instituted thereafter, in order to avoid conflict of orders by it and the High Courts, but also in the interest of expeditious and specialized justice in the field of environment to all concerned. Their Lordships have further observed that the courts may be well advised to direct transfer of such cases to the learned Tribunal in their discretion as it would be in the fitness of administration of justice.
As in our comprehension, the proceedings on board do involve environmental issues relatable to the legislation(s) as the case may be, and set out in Schedule I of the Act and are best suited to be adjudicated upon by the specialized fora (learned Tribunal) equipped with the essential expertise as visualized by the Act, we construe it appropriate to transfer the same to it forthwith. Ordered accordingly.
The petitions are disposed of on transfer. A copy of this order be placed in all the files.
(P.K. LOHRA), J. (AMITAVA ROY), CJ."
In terms of the above order of Division Bench of this Court, the present writ petitions are also disposed of on transfer to the National Green Tribunal. A copy of this order be placed in all the matters.
[VIJAY BISHNOI],J.
m.asif/-