Karnataka High Court
Trinity Meadows Apartment Owners ... vs The State Pollution Control Board on 4 January, 2023
Author: Prasanna B.Varale
Bench: Prasanna B.Varale
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR.PRASANNA B.VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE ASHOK S.KINAGI
WRIT PETITION NO.6624 OF 2020 (GM-POL)
BETWEEN:
TRINITY MEADOWS APARTMENT
OWNERS' ASSOCIATION,
SY.NO.76, BELLANDUR MAIN ROAD,
BANGALORE - 560 103.
REPRESENTED BY ITS PRESIDENT,
MR. SUMONTA MAZUMDER. ... PETITIONER
(BY SRI NAVEEN J.N., ADVOCATE)
AND:
1. THE STATE POLLUTION CONTROL BOARD,
NISARGA BHAVAN,
3RD FLOOR, THIMMAIAH ROAD,
SHIVANAGAR, BANGALORE - 560 010.
REPRESENTED BY ITS
SENIOR ENVIRONMENTAL OFFICER
2. THE ENVIRONMENTAL OFFICER,
OFFICE OF THE REGIONAL OFFICER,
KARNATAKA STATE POLLUTION
CONTROL BOARD,
NISARGA BHAVAN, 3RD FLOOR,
THIMMAIAH ROAD,
SHIVANAGAR, BANGALORE - 560 010.
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3. THE REGIONAL OFFICER,
KARNATAKA STATE POLLUTION
CONTROL BOARD,
NISARGA BHAVAN, 3RD FLOOR,
THIMMAIAH ROAD,
SHIVANAGAR, BANGALORE - 560 010.
4. THE BRUHAT BANGALORE MAHANAGARA PALIKE,
HUDSON CIRCLE,
BANGALORE - 560 001.
5. THE BANGALORE WATER SUPPLY
AND SEWAGE BOARD
1ST FLOOR, CAUVERY BHAVAN,
KEMPEGOWDA ROAD,
BANGALORE - 560 009.
REPRESENTED BY ITS CHAIRMAN
6. THE BANGALORE DEVELOPMENT AUTHORITY,
PALACE ROAD,
BANGALORE - 560 001.
REPRESENTED BY ITS COMMISSIONER
7. THE BANGALORE ELECTRICITY SUPPLY COMPANY,
K.R. CIRCLE,
BANGALORE - 560 001.
REPRESENTED BY ITS CHIEF ENGINEER.
... RESPONDENTS
(BY SRI A. MAHESH CHOWDHARY, ADVOCATE FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE AN ORDER OR DIRECTION OR WRIT IN THE NATURE OF
CERTIORARI QUASHING THE ORDER DATED 04.12.2019 IN
NO.PCB/RO/BOM/EC/2019-20/1939 ISSUED BY THE 3 RD
RESPONDENT MARKED AS ANNEXURE-S TO THE WRIT
PETITION AND ETC.
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THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER
The petitioner - association in the name of Trinity Meadows Apartments Owners' Association has approached this Court, by way of the present writ petition, challenging the demand notice and the show cause notice dated 04.12.2019 and 03.02.2020, respectively.
2. The perusal of the demand notice dated 04.12.2019 placed on record at Annexure-S shows that in view of certain directions issued by the National Green Tribunal (NGT), the Karnataka State Pollution Control Board (for short, 'the Board') issued notice to the petitioner - association for violating the provisions of the Water (Prevention and Control of Pollution) Act, 1974 (for short, 'the Act'). As per the said demand notice, the petitioner - association is liable to pay Environmental compensation. Subsequently, on 10.01.2020, the Board issued show-cause notice calling upon the petitioner
- association to show cause as to why power supply should not be cut off to the apartment under Section 33(A) of the Act for -4- non payment of Environment compensation. The petitioner submitted its reply to the notice on 25.01.2020. Being not satisfied with the reply of the petitioner - association, the respondent No.3 issued another notice in the nature of a direction dated 03.02.2020.
3. The perusal of the notice dated 03.02.2020 shows that the Authority by exercising its powers under Section 33A of the Act read with Rule 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 issued certain directions to the Managing Director, BESCOM, K.R.Circle, Bengaluru; the Chairman, BWSSB, Cauvery Bhavana, Bengaluru and the Commissioners of BBMP or BDA. All this process of issuing notices occurred in the year 2019-2020.
4. In a similar set of circumstances, a writ petition was filed before this Court in Writ Petition No.22831/2021 and this Court, by the order dated 08.11.2022, considering the very same provisions of law mentioned above, observed that -5- alternative remedy of an appeal under Section 33B of the Act is available to the petitioner and dismissed the writ petition reserving liberty to the petitioner to initiate appropriate proceedings before the appropriate forum, if so advised. The relevant paragraphs 5 and 6 of the said order are extracted hereunder:
"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 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:
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" ... 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."
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".-7-
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."
5. The learned counsel for the petitioner has placed reliance on the judgment of this Court dated 16.03.2020 passed in a bunch of writ petitions. On perusal of the said order, it is clearly revealed that in the notices subjected to challenge in those bunch of writ petitions, there was no reference made to the above statutory powers exercised by the Competent Board for making the demands and it was submitted before the Division Bench that no opportunity of hearing was granted to the petitioners therein.
6. Now in the present case, as observed by us, the Competent Authority has clearly referred to the specific provisions in the notices and particularly, in the notice dated 03.02.2020 vide Annexure-V (page 78) a clear reference is -8- made to the specific provisions of law referred above. As such, in our opinion, the judgment relied upon by the learned counsel for the petitioner is of no help to the petitioner.
7. In view of this fact situation, we see no reason to take a different view than the view adopted by us in our dated 08.11.2022. As such, the petition is dismissed and the liberty is reserved to the petitioner to initiate appropriate proceedings before the appropriate forum, if so advised.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE AHB