Telangana High Court
Mr. K T Rama Rao vs Mr. Anumula Revanth Reddy, And 7 Others on 27 April, 2022
Author: A.Rajasheker Reddy
Bench: A.Rajasheker Reddy, P Naveen Rao
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
&
THE HON'BLE SRI JUSTICE P. NAVEEN RAO
WP Nos.7879 of 2020 & 7961 of 2020
COMMON ORDER:: (per Hon'ble Sri Justice A. Rajasheker Reddy,) These two writ petitions are directed against the order dated 05.06.2020 of the National Green Tribunal, Southern Zone, Chennai, (for short, "the Tribunal") passed in O.A.No.79 of 2O2O. As these writ petitions are against the same order of the Tribunal, they are heard together.
2. In the OA it is alleged that petitioner in W.P.No.7961 of 2O2O made massive constructions on the land situated in Sy.No.3O1-313 in the Revenue limits of Janwada/Mirzaguda villages, Shankarpally mandal, Ranga Reddy district, (for short, "the property"). This land is abutting Osman Sagar lake and such constructions are prohibited. Any construction made in the prohibited zone in gross violation of the provisions of the Water (Prevention and Control of Pollution) Act, 1974; the Environment (Protection) Act, 1986 and GO Ms.No.111, dated 08-03-1996 is illegal. It is urged that such constructions in the prohibited zone has a telling effect on the natural water bodies in Janwada/Mirzaguda villages of Shankarpally mandal and to the catchment areas besides causing pollution to the Osman Sagar lake, 2 which is a life-line for drinking water and flood control in the limits of Greater Hyderabad.
3. The Tribunal, by the order impugned gave certain directions at the interlocutory stage that include forming a joint committee consisting of high ranking officials from the Departments of Environment, Revenue, Municipal Corporation, Water Works, Irrigation and Hyderabad Lakes and Water Bodies Management circle to inspect the area in question. The Tribunal further ordered to submit factual and action taken report, if there are any violations found, taking into account the previous orders passed by it on the subject matter. Petitioners challenge the said orders in these two writ petitions.
4. The pleadings of petitioners in these two writ petitions are briefly noted hereunder:
WP No.7879 of 2020:
The petitioner states that he purchased the land admeasuring Ac.3.30 guntas in Survey No.311 (P) Janwada village, Shankarpally mandal, Ranga Reddy district and the farm house built on the land admeasuring 1210 sq. yards under two registered sale deeds executed on 11.09.2019. His case is as per the permissions obtained by the petitioner's vendor's vendor in the year 2014 from the Gram Panchayat 3 construction was made and ultimately purchased by him for a valid sale consideration. That the constructions made on the property are authorized and within the parameters permitted by GO Ms.No.111, dated 08.03.1996. The grievance of the petitioner is that the directions have a direct bearing on his property whereas the true owner of the property was not made a party to the proceedings. It is therefore urged that the impugned order passed behind his back is in clear violation of principles of natural justice, besides that the cause of action to initiate proceedings is also barred by limitation under Section 14 (3) and 19 (4) (i) of the National Green Tribunal Act, 2010, (for short, "the Act").
WP No.7961 of 2O2O:
The petitioner states that he is a Member of the Legislative Assembly of Telangana State and is currently discharging his responsibilities as a Minister in the Government of Telangana. That the OA filed by the first respondent is politically motivated and the petitioner has no connection or relation with the alleged construction activity and any violations of law in making constructions on the property or with regard ownership of the property attributed to him. They are absolutely false and incorrect and it is an abuse of process of law on the part of the first respondent. It is also stated that the cause of action to initiate the 4 proceedings is barred by limitation and the impugned order passed is contrary to Section 14 (3) of the Act.
5. For convenience, parties are referred to as arrayed in W.P.No.7879 of 2020.
6. Heard Sri P. Sri Raghuram, learned senior counsel representing learned counsel Sri Tarun G.Reddy in WP No.7879 of 2O2O, and Sri S.Niranjan Reddy, learned senior counsel representing learned counsel Sri N.Naveen Kumar in WP No.7961 of 2020, learned counsel for the petitioners respectively, Sri S.S.S. Prasad, learned senior counsel appearing for first respondent and learned Additional Advocate General for State of Telangana.
7. Sri P Sri Raghuram, learned senior counsel contended that petitioner in W P No. 7879 of 2020 is the owner of subject land. He is not made a party, whereas the prayer in the application before the Green Tribunal and directions issued by the Tribunal directly affect his property. Petitioner purchased the subject land by way of registered sale deed. The registered sale deed is a notice to public at large and therefore first respondent can not plead ignorance. Thus the O A is liable to be dismissed on this ground alone.
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8. He would further submit that the impugned order passed is in violation of principles of natural justice and also in violation of Section 19(4) (i) of the Act. O.A. is not maintainable unless it is filed within six months of arising of cause of action. The building permission was obtained in the year 2015 whereas the O.A. was not filed within six months from the date of building permission.
9. He would further submit that first respondent sought to raise plea of benami whereas no such plea is permissible in view of The Benami Transactions (Prohibition) Act, 1988.
10. He would further submit that as per Section 19 (4) (i) the Tribunal has to give notice and opportunity before passing any interim orders whereas no notice was issued to petitioner and there was no opportunity for the petitioner to put-forth his version.
11. He would submit that property details are not furnished. There was no mention of survey number and extent of land and what was averred was vague.
12. Learned senior counsel would submit that as petitioner is not a party to the O.A., he cannot be compelled to avail the remedy of appeal. Moreover, the Tribunal has no jurisdiction to entertain the O.A.
13. Learned senior counsel relied on following decisions: 6
i) Maharashtra Chess Association v. Union of India1;
ii) Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others2;
iii) Rajendra Diwan vs. Pradeep Kumar Ranibala and another3;
iv) Syed Yakoob v. K.s.Radhakrishnan and others4;
v) A.Jithendernath v. Jubilee Hills Coop. House Building Society and another5; and
vi) Khetrabasi Biswal v. Ajaya Kumar Baral and others6
14. Sri S.Niranjan Reddy, learned senior counsel appearing for 9th respondent (petitioner in W.P.No.7961 of 2020) would submit that the O.A. is politically motivated. Petitioner is no way concerned with the property in issue. The first respondent is aware of this fact. The pleadings in O.A. point out that reliance was placed on online news item which itself disclose that petitioner is not the owner of the land. There was no plea of benami ownership. In the counter-affidavit filed in the writ petition, first respondent acknowledges ownership of the petitioner. The first respondent refers to 9th respondent as lessee. Even if he is a lessee, he cannot be a party and owner alone should be made a party in a case concerning environment. It is not a bona fide litigation but accentuated by mala fide intention to tarnish the image of 9th respondent.
1 2019 SCC Online SC 932 2 (1998) 8 SCC 1 3 2019 SCC Online SC 1586 4 (1964) 5 SCR 64: AIR 1964 SC 477 5 (2006) 10 SCC 96 6 (20040 1 SCC 317 7
15. He would submit that as per Section 14 (3), the Tribunal does not have jurisdiction to entertain the O.A., if it is not filed within six months of arising of cause of action. According to petitioner in W P NO. 7879 of 2020, the building permission was granted in the year 2015 and construction commenced on 7.3.2015. Even if 6.9.2019 as claimed by first respondent is taken as the date of arising cause of action first, as the O.A was filed on 30.5.2020, it is beyond the period stipulated in Section 14(3). The Tribunal grossly erred in assuming jurisdiction when the O.A. was not filed within six months of arising of cause of action and erred in deferring the issue to final hearing stage.
16. Sri S.Niranjan Reddy, senior counsel pointed out that the violation alleged in the application pertain to G.O.Ms.No.111, dated 08.03.1996. As the said G.O., was not issued under any statute much less the statutes mentioned in Schedule-l of the Act, the application is not maintainable on that ground alone. It is lastly submitted that availability of alternate remedy will not be a bar to entertain the writ petition, in case where the impugned order is passed in violation of principles of natural justice and in violation of statute.
17. Learned senior counsel relied on following decisions:
i) State of H.P. and others v. Gujarat Ambuja Cement Ltd. And another7;7
(2005) 6 SCC 499 8
ii) L.K.Verma v. HMT Ltd. And another8;
iii)Union of India and another v. Vicco Laboratories9;
iv) Ranjit Singh v. State of Punjab Etc.10;
v) Whirlpool Corporation v. Registrar of Trade marks, Mumbai and others [ (1998) 8 SCC 1];
vi) L.Chandra Kumar vs. Union of India and others11;
vii) Satwati Deswal v. State of Haryana and others12
18. Both the senior counsel submitted that the Tribunal, without considering the issue of limitation first, reserved it to be decided in the main application and granted interim direction, which is impermissible in law and such exercise of jurisdiction is not in consonance with Section 14 (3) of the Act. According to them, even as per averments in the application, it is barred by limitation from the date when the cause of action for such dispute first arose and the concept of continuous cause of action has no application in view of the language used in Section 14 (3) of the Act. It is further pointed out inasmuch as the plea of limitation was not considered at the threshold, taking cognizance and issuing interim direction is a classic case of error of jurisdiction in entertaining the application.
19. Sri S.S.S. Prasad, learned senior counsel appearing for first respondent submitted that against interlocutory order of the Tribunal, writ petition is not maintainable. Further, Section 22 of the Act provides 8 (2006) 2 SCC 269 9 (2007) 13 SCC 270 10 2004 SCC Online P&H 1036 11 (1997) 3 SCC 261 12 (2010) 1 SCC 126 9 for remedy of appeal against any order of the Tribunal. Said remedy can be availed even by a non-party. Further, in exercise of power of judicial review this Court can not go into merits as sought to be urged by the petitioners.
20. He would submit that issue of limitation is a mixed question of law and fact that requires consideration after evidence is recorded. He would submit that cause of action has to be from the date of knowledge and the O.A. was filed within six months from the date of knowledge. The Tribunal is vested with jurisdiction to adjudicate disputes on environment. What is urged before the Tribunal are matters for adjudication by the Tribunal. While exercising jurisdiction, if the Tribunal deferred consideration of issue of limitation, it does not amount to lack of jurisdiction but is at the most wrongful exercise of jurisdiction that can be corrected in the appeal. He would submit that issue of 'no cause of action' and 'barred by limitation' do not amount to extra-ordinary circumstance warranting availing extraordinary remedy under Article 226 of the Constitution of India.
21. He would submit that Tribunal order is based on pleadings as urged before the Tribunal. By said order no illegality is committed by the Tribunal.
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22. He would submit that issues on environment stand on higher pedestal, involve technical aspects and those aspects can not be gone into by the High Court under Article 226 of the Constitution. He would submit that Government issued Memo dated 12.1.2007 imposing restraint on constructions in the catchments area of two lakes. Therefore, no building permission could have been issued.
23. He would further submit that NGT only directed to call for report. By calling for report, no prejudice is caused. The Tribunal has not imposed any restraint on use of the property. Therefore, there is cause to avail the extra ordinary remedy against an interlocutory order.
24. Learned senior counsel relied on following decisions:
i) Decision of Division Bench of this Court in WP No.9057 of 2020
25. Learned Additional Advocate General would submit that as held by the Division Bench in STATE OF TELANGANA VS HAYATHUDDIN13, this Court has jurisdiction to entertain writ petition against orders of the Tribunal and that view taken by the second Division Bench on Section 22 is per-incuriam. He would submit that the Tribunal being creature of statute, it has to exercise jurisdiction within the bounds of NGT Act. Consideration of 'cause first arose' is crucial for the Tribunal to exercise 13 2018 (1) ALD 247 11 jurisdiction. In the facts of this case, Tribunal erred in exercising jurisdiction as 'cause first arose' dated back to 2015. Learned Additional Advocate General relied on the decision of Full Bench of NGT and the decision of Hon'ble Supreme Court in MANTRI TECHZONE (P) LTD. V. FORWARD FOUNDATION14.
26. Considering the pleadings and submissions, following issues arise for consideration:
(1) Whether the Tribunal erred in not considering the plea of limitation as preliminary issue ?
(2) Whether the writ petitions are maintainable against ex parte interlocutory orders ?
(3) Whether the application filed before the Tribunal is not maintainable as the owner of the land in issue is not made a party to the application ?
(4) Whether non-owner can be impleaded as party to proceedings ?
ISSUE NO.1:
27. The Tribunal is a creature of statue and it has to function strictly in accordance with the procedure envisaged under the Act under which it is born. As its powers emanate from the statute, exercise of powers thereof should be strictly in accordance therewith. Now, we will examine whether the order impugned in the writ petitions is in consonance with the provisions of the Act.
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(2019) 18 SCC 494 12
28. Chapter-II of the Act relates to the Jurisdiction, Powers and Proceedings of the Tribunal. Relevant to the case are Sections 14 and 19 (4) (i) of the Act, which reads as under:-
"Section 14: Tribunal to settle disputes:
(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule-I.
2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon. (3) No application for adjudication of disputes under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose.
Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it be filed within further period not exceeding sixty days." (emphasis added) " 19. Procedure and powers of Tribunal:--
1) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice.
2)Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure.
3)The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872 (1 of 1872).
4)The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, i908 (5 of 1908), while trying a suit, in respect of the following matters, namely:-
a) summoning and enforcing the attendance of any person and examining him on oath;
b) requiring the discovery and production of documents;
c) receiving evidence on affidavits;13
d) subject to the provisions of Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office.
e) issuing commissions for the examination of witnesses or documents;
f) reviewing its decision;
g) dismissing an application for default or deciding its ex-parte;
h) setting aside any order of dismissal of any application for default or any
order passed by it ex-parte;
i) pass an interim order (including granting an injunction or stay)
after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act;
j) pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I;
k) any other matter which may be prescribed.
5) All proceedings before the Tribunal shall be deemed to be the judicial proceedings within the meaning of section 193,219 and, 228 for the purposes of section 196 of the Indian Penal Code (a5 of 1860) and the Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974 ).
(emphasis added)
29. Sub-section (2) of Section 14 says that the Tribunal shall hear the disputes arising from the questions referred to it under Sub-section (1) and settle such disputes and pass orders thereon. Sub-section (3) thereof, which is relevant for the purpose of this case, mandates that no application for adjudication of disputes shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose. The language employed by the legislature is 'shall' as such there is legislative mandate that before assuming jurisdiction to entertain application, at threshold the Tribunal must consider whether the application is within limitation or extended period of limitation. It is thus apparent that the Tribunal can assume jurisdiction to decide a dispute only if the dispute relates to 14 environment and cause of action to raise the dispute first arose within six months, with an outer margin of 60 days, from the date of institution of the application. Unless these two conditions are fulfilled, the Tribunal has no competence to decide a dispute. In other words, even if dispute raised is on environment, but cause of action arose six months earlier to filing of the application, the Tribunal can not entertain the dispute. The Tribunal, being a creature of the statute, it has to adjudicate a dispute only if twin requirements are fulfilled. In other words, the issue of maintainability of an application should be decided at the threshold and cannot defer it to the final stage of adjudication.
30. That being the statutory mandate, though one of the counsel for a respondent before the Tribunal raised the plea of maintainability, observing that it is not expressing any opinion on the aspect of limitation at that stage, the Tribunal left open the question of maintainability to be decided in the main application, thus postponing the issue.
31. The scope of Section 14 (3) of NGT Act fell for consideration before Division Bench of Bombay High Court in WINDSOR REALITY PVT LTD VS SECRETARY, MINISTRY OF ENVIRONMENT AND FORESTS15. The Division Bench considered two aspects, maintainability of O.A., vis-à-vis limitation and maintainability of the writ petition without availing 15 2016 SCC OnLine Bom 5613 15 alternative remedy. The Division Bench of Bombay High Court held that writ petition is maintainable against orders of Green Tribunal. The NGT opined that cause of action has to be considered from the date of knowledge. Dealing with this view, the Division Bench held:
"35. A bare perusal of the said section clearly discloses that period of limitation is six months from the date on which the cause of action first arose. Prima faice, therefore it cannot be interpreted by any stretch of imagination that it would arose from the date of knowledge of the original applicant of the alleged violation taking place or from the date on which the Environmental Authorities were informed about violation and inaction on their part. There appears to be a lot of confusion in the mind of NGT Bench, Pune on various aspects of continuous cause of action. Perusal of the said Section indicates that the concept of continuous cause of action cannot apply to the complaints which are filed before the NGT because had it been so, the legislature would not have stated that the limitation would be six months from the date on which the cause of action for such dispute first arose. If the interpretation which is sought to be given to the provision by the NGT Bench, Pune in the impugned order is accepted, the complaint could be filed by the aggrieved person at any point of time, claiming that he came to know about the violation after 10 or 20 years. At the same time, if there is any violation of the provisions of the Environment (Protection) Act, 1986, the same have to be addressed and looked into. The only question is by which Authority."
31.1. In MD.HAYATH UDDIN (supra) a Division Bench of this Court elaborately considered the issue of maintainability of O.A. if filed beyond period of limitation prescribed in Section 14 (3) of the NGT Act and maintainability of the writ petition against interlocutory orders of the Tribunal, in identical factual foundation.
31.2. Dealing with the scope of jurisdiction of NGT vis-à-vis limitation prescribed in Section 14 (3), the Division Bench held that unless the application was made before NGT within six months from the date on which the cause of action for a dispute first arose, the NGT is barred from entertaining the application. The Division Bench observed that 16 "The NGT was required, in the first instance, to ascertain the cause of action for the dispute, then determine the date on which such cause of action first arose, and thereafter consider whether the said date fell within the period stipulated in Section 14(3) of the 2010 Act and its proviso..." 31.3. According to Division Bench these are all matters, which the NGT should examine in the first instance. The Division Bench held:
"36. Chapter III of the 2010 Act relates to the Jurisdiction, Powers and Proceedings of the Tribunal (NGT). Section 14(1) stipulates that the NGT shall have jurisdiction over all civil cases where a substantial question relating to the environment, (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I. Among the enactments, referred to in Schedule I to the 2010 Act, include the Forest Conservation Act, 1980 and the Environmental Protection Act, 1986. Section 14(3) of the 2010 Act stipulates that no application, for adjudication of a dispute under Section 14, shall be entertained by the NGT unless it is made within a period of six months from the date on which the cause of action for such dispute first arose. The proviso thereto enables the NGT, if it is satisfied that the applicant was prevented by sufficient cause, from filing the application within the said period, to allow it to be filed within a further period not exceeding sixty days. The expression used in Section 14(3) is six months from the date on which the cause of action for such dispute first arose. The prescribed period for filing the application i.e of six months, after which no application can be entertained by the NGT, is required to be computed from the date on which the cause of action for the dispute first arose. The proviso only enables the NGT to allow an application to be filed within a further period of upto sixty days, beyond the period of six months stipulated in Section 14(3), on its recording its satisfaction that the applicant was prevented by sufficient cause from filing the application within the six month period stipulated in Section 14(3). Section 14(3) of the 2010 Act begins with the words no application for adjudication of disputes under Section 14 shall be entertained by the Tribunal. It is evident therefore that, unless the application was made before it within six months from the date on which the cause of action for such dispute first arose, the NGT is barred even from entertaining the application, much less adjudicating the questions raised therein.
37.....
38. The question which the NGT was required to examine was whether the application, filed by the first respondent-applicant, was within six months from the date on which the cause of action first arose.........
46. A Tribunal, which is a creature of a statute, has only the powers expressly conferred on it, or resulting directly from powers so conferred. Acting otherwise goes to the very existence of the power. This lack of jurisdiction may relate to the subject- matter, the territory or the person. (Immeubles Port Louis Itee v. Lafontaine (Village)). Statutory tribunals, set up under an Act of legislature, are creatures of the Statute, (R.K. Jain v. Union of India), and should be guided by the conditions stipulated in the 17 statutory provisions while exercising powers expressly conferred or those incidental thereto. (The Commissioner of Central Excise, Guntur Commisionerate, Guntur v. Sri. Chaitanya Educational Committee, Poranki, Vijayawada, represented by its Managing Director). Statutory tribunals, created by an Act of Parliament, have limited jurisdiction and must function within the four-corners of the Statute which created them. (O.P. Gupta v. Rattan Singh). It is not open to the Tribunal to travel beyond the provisions of the statute. (D. Ramakrishna Reddy v. Addl. Revenue Divisional Officers). Since these tribunals are required to function in accordance with the provisions of the Act, the restriction placed on the exercise of their jurisdiction, by the provisions of the Act, cannot be said to interfere with their quasi judicial functions under the Act. (Tirupati Chemicals, Vijayawada v. Deputy Commercial Tax Officer, Vijayawada).
47. The NGT is a creature of a statute, and must exercise its powers and jurisdiction strictly in accordance with the provisions of the 2010 Act under which it was created, and not beyond. It is only if it is entitled to entertain the O.A, could the NGT have considered the application for grant of interim relief. Before passing an interim order, the NGT should have atleast recorded its, prima facie, satisfaction of the O.A having been filed within the period specified in Section 14(3) of the 2010 Act, and should have assigned reasons therefor." (Emphasis supplied)
32. In this present case the Tribunal postponed the issue regarding limitation though raised which is condition precedent for entertaining and adjudicating of the application. Issue is answered in favour of writ petitioners.
ISSUE NO.2:
33. On maintainability of writ petitions, both sides relied on the decision of Hon'ble Supreme Court in EMBASSY PROPERTY DEVELOPMENTS PRIVATE LIMITED VS. STATE OF KARNATAKA AND OTHERS16. These appeals were filed challenging the interim order of the High Court in a writ petition staying the operation of a direction contained in the order of the NCLT.
16
(2020) 13 SCC 308 18
34. Briefly noted, during the pendency of Corporate Insolvency Resolution Process issue of renewal/continuation of mining lease arose. Interim Resolution Professional required to the State Government to accord deemed extension of mining lease. This request was negatived by the Government. The same is challenged before the NCLT, Chennai. State objected to maintainability of such application in NCLT. Overruling the said objection, NCLT passed order. Said order of NCLT was challenged in the Hon'ble High Court. The High Court suspended the order of NCLT. The same was challenged before the Hon'ble Supreme Court.
35. The first question considered was whether the High Court ought to interfere under Article 226/227 of the Constitution with an order passed by NCLT in a proceeding under the IBC, 2016 despite availability of a statutory alternative remedy of appeal to NCLT. An identical question as raised herein.
36. The Hon'ble Supreme Court reviewed law as evolved in the England and as adopted in India over a period of time on jurisdiction of writ Court to test validity of the decision of inferior Court/Tribunal and maintainability of writ petition when alternative remedy of appeal is preceded by the statute that created the Tribunal. It is useful to extract following observations:-
19
"15. One of the well-recognised exceptions to the self-imposed restraint of the High Courts, in cases where a statutory alternative remedy of appeal is available, is the lack of jurisdiction on the part of the statutory/quasi-judicial authority, against whose order a judicial review is sought. Traditionally, English courts maintained a distinction between cases where a statutory/quasi-judicial authority exercised a jurisdiction not vested in it in law and cases where there was a wrongful exercise of the available jurisdiction. An "error of jurisdiction" was always distinguished from "in excess of jurisdiction", until the advent of the decision rendered by the House of Lords, by a majority of 3 : 2 in Anisminic Ltd. v. Foreign Compensation Commission [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] . After acknowledging that a confusion had been created by the observations made in R. v. Governor of Brixton Prison, ex p Armah [R. v. Governor of Brixton Prison, ex p Armah, 1968 AC 192 : (1966) 3 WLR 828 (HL)] to the effect that if a Tribunal has jurisdiction to go right, it has jurisdiction to go wrong, it was held in Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] that the real question was not whether an authority made a wrong decision but whether they enquired into and decided a matter which they had no right to consider. xxxx
18. Interestingly just four days before the House of Lords delivered the judgment in Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] (on 17-12-1968), an identical view was taken by a three-member Bench of this Court (delivered on 13-12-1968) in Official Trustee v. Sachindra Nath Chatterjee [Official Trustee v. Sachindra Nath Chatterjee, (1969) 3 SCR 92 : AIR 1969 SC 823] approving the view taken by the Full Bench of the Calcutta High Court in Hriday Nath Roy v. Ram Chandra Barna Sarma [Hriday Nath Roy v. Ram Chandra Barna Sarma, 1920 SCC OnLine Cal 85 : ILR (1921) 48 Cal 138] . It was held therein that : (Sachindra Nath Chatterjee case [Official Trustee v. Sachindra Nath Chatterjee, (1969) 3 SCR 92 : AIR 1969 SC 823] , AIR p. 828, para 15) "15. ... before a court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought, but must also have the authority to pass the orders sought for". (emphasis supplied) This Court also pointed out that it is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit, but its jurisdiction must include (1) the power to hear and decide the questions at issue, and (2) the power to grant the relief asked for.
xxxxx
22. ..... Therefore the question whether the error committed by an administrative authority/tribunal or a court of law went to jurisdiction or whether it was within jurisdiction may still be relevant to test whether a statutory alternative remedy should be allowed to be bypassed or not.
xxxxx
24. Therefore insofar as the question of exercise of the power conferred by Article 226, despite the availability of a statutory alternative remedy, is concerned, Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] cannot be relied upon. The distinction between the lack of jurisdiction and the wrongful exercise of the available jurisdiction, should certainly be taken into account by High Courts, when Article 226 is sought to be invoked bypassing a statutory alternative remedy provided by a special statute." (emphasis supplied) 20
37. Hon'ble Supreme Court held that the NCLT being a creature of a special statute to discharge certain specific functions, can exercise only such powers within the contours of jurisdiction as prescribed by the statute. Hon'ble Supreme Court further observed that the Tribunal which is the creature of a statute cannot be clothed with jurisdiction by a concession made by a party. On thorough analysis of provisions of the Act, the Hon'ble Supreme Court held, "46. Therefore, in fine, our answer to the first question would be that NCLT did not have jurisdiction to entertain an application against the Government of Karnataka for a direction to execute supplemental lease deeds for the extension of the mining lease. Since NCLT chose to exercise a jurisdiction not vested in it in law, the High Court of Karnataka was justified in entertaining the writ petition, on the basis that NCLT was coram non judice." (emphasis supplied)
38. Section 19 (1) & (2) which deals with procedure and powers of Tribunal says that the Tribunal is not bound by procedure laid down by Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice. Sub-section (4), the Tribunal for the purpose of discharging its function under the Act, the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908, while trying a suit in respect of matters stated under (a) to (k). Sub-section (4) (i) mandates for providing opportunity of being heard to the concerned parties before any interim orders are passed on any application or appeal under the Act. The Legislature intent is very clear and specifically wanted the Tribunal to observe principles of natural justice before passing any interim orders unlike in many other statues where such contingency is 21 not provided. When the provision of law mandates that principles of natural justice have to be followed even before grant of interim order, observance of such a mandate under the statue cannot be abdicated and has to be followed in its true spirit. But, in the present case, the impugned order is violative of Section 19 (4) (i) of the Act.
39. It is vehemently contended that Section 22 of the NGT Act provides for remedy of appeal against any order passed by the Tribunal and even a non-party before the Tribunal also can avail the said remedy. It is an efficacious remedy. All the pleas urged herein can as well be raised in the appeal. When an effective and efficacious alternative remedy is available, the writ petition is not maintainable.
40. This issue is no longer res-integra. It is settled law that availability of alternate remedy is no bar for exercise of extraordinary jurisdiction under Article 226 of Constitution of India especially when the impugned order is patently in violation of the provisions of the Act and the power of judicial review is declared to be the basic feature of the Constitution. (see WHIRLPOOL CORPORATION Vs, REGISTRAR OF TRADEMARK & L. CHANDRA KUMAR vs. UNION OF INDIA). The Act also does not provide for exclusion of power of judicial review by the High Court under Article 226 of the Constitution of India. The Division Bench in MD.HAYATHUDDIN's case (supra), by relying on various case laws, 22 especially on the ruling in L.CHANDRA KUMAR's case (supra) concluded the issue which arose under the self same statue and held impugned action of the Tribunal is not in accordance with the procedure envisaged under the Act and writ petition is maintainable.
41. In State of HIMACHAL PRADESH VS GUJARAT AMBUJA CEMENT LIMITED17 Hon'ble Supreme Court carved out two exceptions in Court entertaining a writ petition without exhausting statutory remedy.
"22...........There are two well-recognised exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.
23.....
24. At this juncture, it would be appropriate to take note of the few expressions in R v. Hillingdon, London Borough Council [(1974) 1 QB 720 : (1974) 2 All ER 643 : (1974) 2 WLR 805] which seems to bring out well the position. Lord Widgery, C.J. stated in this case: (All ER pp. 648f & 648h-649c) It has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy. ...
... the statutory system of appeals is more effective and more convenient than an application for certiorari and the principal reason why it may prove itself to be more convenient and more effective is that an appeal to [say] the Secretary of State can be disposed of at one hearing. Whether the issue between them is a matter of law or fact or policy or opinion or a combination of some or all of these ... whereas of course an application for certiorari is limited to cases where the issue is a matter of law and then only it is a matter of law appearing on the face of the order.
*** An application for certiorari has however this advantage that it is speedier and cheaper than the other methods and in a proper case therefore it may well be right to allow it to be used.... I would, however, define a proper case as being one where the decision in question is liable to be upset as a matter of law because on its face it is clearly made without jurisdiction or in consequence of an error of law.17
(2005) 6 SCC 499 23 After all the above discussion, the following observations of Roskill, L.J. in Hanson v.
Church Commrs. [1978 QB 823 : (1977) 3 All ER 404 : (1977) 2 WLR 848 (CA)] may not be welcomed but it should not be forgotten also: (All ER p. 414f) "There are a number of shoals and very little safe water in the unchartered seas which divide the line between prerogative orders and statutory appeals, and I do not propose to plunge into those seas...."
Therefore, the plea that the High Court should not have entertained the writ petition is without any merit and deserves rejection.
41.1. It is further held that when on the undisputed facts the authority/ inferior Tribunal assumed jurisdiction which it does not have a writ of certiorari, can be invoked without compelling the petitioner to long drawn recourse of statutory remedy.
42. In L.K.VERMA VS HMT LTD (supra) Hon'ble Supreme Court reiterated the scope of extraordinary jurisdiction of High Court vis-à-vis alternative remedy. It held:
"20. The High Court in exercise of its jurisdiction under Article 226 of the Constitution, in a given case although may not entertain a writ petition inter alia on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. Despite existence of an alternative remedy, a writ court may exercise its discretionary jurisdiction of judicial review inter alia in cases where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right or if there has been a violation of a principle of natural justice or where vires of the Act is in question. In the aforementioned circumstances, the alternative remedy has been held not to operate as a bar. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] , Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd. [(2005) 8 SCC 242] and State of H.P. v. Gujarat Ambuja Cement Ltd. [(2005) 6 SCC 499] )"
43. Thus, mere existence of alternative forum does not create a legal bar on High Court to exercise jurisdiction under Article 226 of the Constitution of India. As the owner of the property is not made a party and the order of the Tribunal is in violation of principles of natural 24 justice, it is a nullity. The statutory Tribunal does not have jurisdiction to adjudicate a dispute without arraying the owner of the property. As held by the Hon'ble Supreme Court in EMBASSY PROPERTY DEVELOPMENTS PRIVATE LIMITED (supra), when inferior Tribunal passed an order which is a nullity, writ petition is maintainable and the superior Court need not drive the party to the Appellate Forum.
44. Heavy reliance is placed on the subsequent decision of Division Bench of this Court in W.P. No. 9057 of 2020 to contend that when alternative remedy of appeal is available under Section 22 the writ petition is not maintainable.
45. From the facts recorded in the case, it is noticed that petitioner therein was a party to the O.A. before the Tribunal. The Division Bench recorded reasons why the case in Md. Hayathuddin (supra) is distinguishable. The Division Bench held:
"However, the said judgment is distinguishable on factual matrix. In the said case, the Principal Seat of the NGT in Delhi had granted an interim stay order in favour of the Applicant in the Original Application. The NGT had stayed further construction of a major irrigation project in the State of Telangana. Since the State was aggrieved by the said interim order, it had challenged the same on two grounds: firstly, the NGT did not have the territorial jurisdiction to entertain the O.A. as the cause of action did not arise within its territorial jurisdiction. Secondly, before staying the Kaleshwarm Irrigation Project suddenly, the NGT should have examined the issue whether the O.A. was filed within the period of limitation. According to the petitioner, therein, the applicant-respondent had filed the O. A. many years after the cause of action had arisen. But despite the fact that the State had raised the issue of limitation, the NGT had neither discussed, nor adjudicated the said issue. It is in these "extraordinary circumstances" of the NGT not having the territorial jurisdiction and still stopping the largest irrigation project of the state, and in the NGT not adjudicating the issue of 25 limitation, although the said issue was raised and argued, that this Court had invoked its writ jurisdiction."
46. Further, the decision in Md.Hayathuddin (supra) is affirmed by the Hon'ble Supreme Court vide order dated 23.2.2018 in SLP No. 4813 of 2018, whereas, the order dated 10.6.2020 passed by the National Green Tribunal, Southern Zone, Chennai was suspended by order dated 24.7.2020 in Civil Appeal No. 2777 of 2020 filed against the decision in W.P.No.9057 of 2020. Further, the opinion expressed by the Division Bench in Md. Hayathuddin (supra) stands affirmed by the Hon'ble Supreme Court in Embassy Property Development Private Limited (supra). We are in respectful agreement with the view taken by the Division Bench in Md. Hayathuddin.
ISSUES NO.3 & 4:
47. Among other things, the first respondent prayed before the Tribunal to declare the construction of farm-house built by the petitioner in WP No.7961 of 2020 as illegal, against provisions of Environment Protection Act, 1996 and other enactments and G.O.Ms No.111 dated 9.3.1999 and to direct the respondents to take stringent action against 9th respondent. The pleadings in the application before the Tribunal would go to show that writ petitioner in WP No.7961 of 2020 is treated as owner of the subject land, therefore said prayer was sought.26
The petitioner in WP No.7879 of 2020, asserts that the property on which the alleged building is constructed is owned by him, appropriate building permissions were obtained and construction was made. Ex.P-3 is registered sale deed dated 11.9.2019 and Ex.P-4 is registered sale deed dated 11.9.2000. By these two sale transactions, writ petitioner in WP No.7879 of 2020 claims to have purchased 1210 sq.yards with buildup area of 3895.12 sq.feets in survey no. 311/part (New Survey No. 311/7) and Ac.3.30 guntas in Survey No. 311/7 respectively. He has also filed Ex.P5 building plans stated to have been granted on 12.9.2014.
48. In the counter affidavit, first respondent admits that the property in issue stands in the name of petitioner. What is sought to be contended is that petitioner is only a benami but actually property belongs to writ petitioner in WP No.7961 of 2020. No foundation is laid on this assertion. The nature of ownership is purely a civil dispute and the Tribunal can not adjudicate on that aspect. Be that as it may, when it is shown that the writ petitioner in WP No.7961 of 2020 is not the owner of the subject property and the property is owned by the petitioner in WP No.7879 of 2020 and he is not the owner of property and on that sole ground the writ petitions are liable to be allowed and accordingly allowed. However, this order will not preclude the petitioner before the Green Tribunal to initiate appropriate proceedings, if otherwise permitted 27 against the true owner of the property in question, in accordance with law.
Miscellaneous petitions, if any pending shall stand disposed of. There shall be no order as to costs.
___________________________ A.RAJASHEKER REDDY, J ________________________ P.NAVEEN RAO,J Dated: 27-04-2022 NRG 28 THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY & THE HON'BLE SRI JUSTICE P. NAVEEN RAO WP Nos.7879 of 2020 & 7961 of 2020 Dated: 27-04-2022 29