Prabhat Mohan Pandey vs Union Of India on 16 April, 2024

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Madhya Pradesh High Court

Prabhat Mohan Pandey vs Union Of India on 16 April, 2024

Bench: Sheel Nagu

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VINAY SARAF

WRIT PETITION NO.14331 of 2023

BETWEEN :-

M/S INDO WATER MANAGEMENT
AND POLLUTION CONTROL
CORPORATION THROUGH AMOL
MOHNE S/O SHRI SAHABLAL
MOHNE, AGED ABOUT 55 YEARS,
OCCUPATION : PROPRIETOR, M/S
INDO WATER MANAGEMENT AND
POLLUTION CONTROL
CORPORATION (CBWTF), R/O
VILLAGE BADKERA, TEHSIL-
UCHEHRA, DISTRICT- SATNA
(MADHYA PRADESH)

.....PETITIONER

(BY SHRI ANSHUMAN SINGH, SHRI AKASH
CHOUDHARY, SHRI ANUJ SHRIVASTAVA,
MS. GUNCHA RASOOL, SHRI VASU JAIN,
SHRI V.S. JHA & MS. KAUSHIKI MISHRA -
ADVOCATES FOR PETITIONER)

AND
- 2 -

1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY,
DEPARTMENT OF INDUSTRIAL
POLICY AND INVESTMENT
PROMOTION, D-WING, FIRST
FLOOR, VINDYANCHAL BHAWAN,
DISTRICT- BHOPAL (M.P.)

2. MADHYA PRADESH INDUSTRIAL
DEVELOPMENT COMPANY LIMITED
(HEAD OFFICE) THROUGH ITS
MANAGING DIRECTOR, CEDMAP
BHAWAN, 16-ARERA HILLS, BHOPAL
(M.P.)

3. REGIONAL OFFICE, MADHYA
PRADESH INDUSTRIAL
DEVELOPMENT CORPORATION
LIMITED THROUGH ITS CHIEF
GENERAL MANAGER, 1st FLOOR,
ROOM NO.12, NEW COLLECTORATE
BUILDING, DISTRICT- REWA (M.P.)

4. M.P. POLLUTION CONTROL BOARD,
E-5 ARERA COLONY, PARYAVARAN
PARISAR, DISTRICT- BHOPAL (M.P.)

5. UNION OF INDIA, THROUGH
MINISTRY OF ENVIRONMENT,
FOREST AND CLIMATE CHANGE
(ISSUE BY THE STATE
ENVIRONMENT IMPACT
ASSESSMENT) (SEIAA), NEW DELHI

6. M/S CHITRA KIRAN WASTE
MANAGEMENT PVT. LTD., PLOT NO.
150/151, INDUSTRIAL AREA, GURH,
- 3 -

TEHSIL- GURH, DISTRICT- REWA
(M.P.)
....RESPONDENTS

(STATE BY SHRI AMIT SETH - DEPUTY A.G.
WITH SHRI G.P. SINGH - GOVERNMENT
ADVOCATE, POLLUTION CONTROL BOARD
BY SHRI ASHISH SHROTI AND SHRI
VIKRAM JOHRI - ADVOCATES & M/S.
CHITRA KIRAN WASTE MANAGEMENT PVT.
LTD. BY RESPONDENTS - SHRI K.C.
GHILDIYAL - SENIOR ADVOCATE WITH
SHRI ARUN K. PANDEY, SHRI SIDDHARTH
SHARMA AND SHRI SHUBHAM MANCHANI
- ADVOCATES)

WRIT PETITION No. 4907 of 2023

BETWEEN :-

AMOL MOHANE S/O SHRI
SAHABLAL MOHANE, AGED ABOUT
55 YEARS, OCCUPATION:
PROPRIETOR- M/S INDO WATER
MANAGEMENT AND POLLUTION
CONTROL CORPORATION (CBWTF),
VILLAGE BADKERA, TEHSIL-
UCHEHARA, DISTRICT- SATNA (M.P.)
.....PETITIONER

(BY SHRI ANSHUMAN SINGH, SHRI AKASH
CHOUDHARY, SHRI ANUJ SHRIVASTAVA,
MS. GUNCHA RASOOL, SHRI VASU JAIN,
SHRI V.S. JHA & MS. KAUSHIKI MISHRA -
ADVOCATES FOR PETITIONER.)

AND
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1. THE STATE OF MADHYA PRADESH
THROUGH ITS PRINCIPAL
SECRETARY, DEPARTMENT OF
INDUSTRIAL POLICY AND
INVESTMENT PROMOTION, D-
WING, FIRST FLOOR,
VINDHYACHAL BHAWAN, DISTRICT-
BHOPAL (M.P.)

2. MADHYA PRADESH INDUSTRIAL
DEVELOPMENT COMPANY LIMITED
(HEAD OFFICE) THROUGH ITS
MANAGING DIRECTOR, CEDMAP
BHAWAN, 16-A ARERA HILLS,
DISTRICT- BHOPAL (M.P.)

3. REGIONAL OFFICE, MADHYA
PRADESH INDUSTRIAL
DEVELOPMENT CORPORATION
LIMITED, THROUGH ITS CHIEF
GENERAL MANAGER, 1st FLOOR,
ROOM NO.12, NEW COLLECTORATE
BUILDING, DISTRICT- REWA (M.P.)

4. M.P. POLLUTION CONTROL BOARD,
E-5 ARERA COLONY, PARYAVARAN
PARISAR, DISTRICT- BHOPAL (M.P.)

5. UNION OF INDIA THROUGH
MINISTRY OF ENVIRONMENT,
FOREST AND CLIMATE CHANGE
(ISSUE BY THE STATE
ENVIRONMENT IMPACT
ASSESSMENT) (SEIAA), NEW DELHI

6. M/S CHITRA KIRAN WASTE
MANAGEMENT PVT. LTD., PLOT NO.
- 5 -

150/151, INDUSTRIAL AREA, GURH,
TEHSIL- GURH, DISTRICT- REWA
(M.P.)

....RESPONDENTS

WRIT PETITION No. 8912 of 2023

BETWEEN :-

PRABHAT MOHAN PANDEY S/O SHRI
MOHAN PANDEY, OCCUPATION:
JOURNALIST, R/O NIKHIL
BUNGALOWS, HOSHANGABAD
ROAD, DISTRICT- BHOPAL (M.P.)

.....PETITIONER

(BY SHRI ANSHUMAN SINGH, SHRI AKASH
CHOUDHARY, SHRI ANUJ SHRIVASTAVA,
MS. GUNCHA RASOOL, SHRI VASU JAIN,
SHRI V.S. JHA & MS. KAUSHIKI MISHRA -
ADVOCATES FOR PETITIONER.)

AND
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1. UNION OF INDIA, MINISTRY OF
ENVIRONMENT FOREST AND
CLIMATE CHANGE THROUGH
SECRETARY, INDIRA PARYANVARAN
BHAWAN, JORBAGH ROAD, NEW
DELHI

2. CENTRAL POLLUTION CONTROL
BOARD THROUGH ZONAL
DIRECTOR, E-5 PARYAVARAN
PARISAR, ARERA COLONY,
DISTRICT- BHOPAL (M.P.)

3. MADHYA PRADESH POLLUTION
CONTROL BOARD THROUGH
MEMBER SECRETARY, E-5
PARYAVARAN PARISAR, ARERA
COLONY, DISTRICT- BHOPAL (M.P.)

4. MADHYA PRADESH STATE
ENVIRONMENT ASSESSMENT
AUTHORITY THROUGH MEMBER
SECRETARY, E-5 PARYAVARAN
PARISAR, ARERA COLONY,
DISTRICT- BHOPAL (M.P.)

5. CBWTF ASSOCIATION OF INDIA
THROUGH PRESIDENT HAVING
OFFICE AT 307-308, CENTURY
CENTRE NEAR GUJARAT
SAMACHAR PRESS,
KANTASTRIVIKASGRUH ROAD,
RAJKOT (GUJARAT)
....RESPONDENTS

(STATE BY SHRI AMIT SETH - DEPUTY A.G.
WITH SHRI G.P. SINGH - GOVERNMENT
- 7 -

ADVOCATE, POLLUTION CONTROL BOARD
BY SHRI ASHISH SHROTI AND SHRI
VIKRAM JOHRI - ADVOCATES & M/S.
CHITRA KIRAN WASTE MANAGEMENT PVT.
LTD. BY RESPONDENTS - SHRI K.C.
GHILDIYAL - SENIOR ADVOCATE WITH
SHRI ARUN K. PANDEY, SHRI SIDDHARTH
SHARMA AND SHRI SHUBHAM MANCHANI
- ADVOCATES)

WRIT PETITION No. 11861 of 2023

BETWEEN :-

M/S INDO WATER MANAGEMENT
AND POLLUTION CONTROL
CORPORATION THROUGH AMOL
MOHNE S/O SHRI SAHABLAL
MOHNE, AGED ABOUT 55 YEARS,
OCCUPATION: PROPRIETOR, M/S
INDOR WATER MANAGEMENT AND
POLLUTION CONTROL
CORPORATION, R/O VILLAGE
BADKERA TEHSIL- UCHEHRA,
DISTRICT- SATNA (M.P.)
.....PETITIONER

(BY SHRI ANSHUMAN SINGH, SHRI AKASH
CHOUDHARY, SHRI ANUJ SHRIVASTAVA,
MS. GUNCHA RASOOL, SHRI VASU JAIN,
SHRI V.S. JHA & MS. KAUSHIKI MISHRA -
ADVOCATES FOR PETITIONER.)

AND

1. STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY,
DEPARTMENT OF INDUSTRIAL
POLICY AND INVESTIGATION
- 8 -

PROMOTION, D-WING, FIRST
FLOOR, VINDHYANCHAL BHAWAN,
DISTRICT- BHOPAL (M.P)

2. MADHYA PRADESH INDUSTRIAL
DEVELOPMENT COMPANY LIMITED
(HEAD OFFICE) THROUGH ITS
MANAGING DIRECTOR, CEDMAP
BHAWAN, 16-A ARERA HILLS
DISTRICT- BHOPAL (M.P)

3. REGIONAL OFFICE, MADHYA
PRADESH INDUSTRIAL
DEVELOPMENT CORPORATION
LIMITED THROUGH ITS CHIEF
GENERAL MANAGER, 1st FLOOR,
ROOM NO. 12, NEW COLLECTORATE
BUILDING, DISTRICT- REWA (M.P.)

4. M.P POLLUTION CONTROL BOARD,
E-5 ARERA COLONY, PARYAVARAN
PARISAR, DISTRICT- BHOPAL (M.P.)

5. UNION OF INDIA THROUGH
MINISTRY OF ENVIRONMENT,
FOREST AND CLIMATE CHANGE
(ISSUE BY THE STATE
ENVIRONMENT IMPACT
ASSESSMENT) SEIAA, NEW DELHI

6. M/S CHITRA KIRAN WASTE
MANAGEMENT PVT LTD., PLOT NO.
150/151, INDUSTRIAL AREA, GURH,
TEHSIL- GURH, DISTRICT- REWA
(M.P.)
....RESPONDENTS
- 9 -

-----------------------------------------------------------------------------------------------
Reserved on : 05.04.2024
Pronounced on : 16.04.2024
---------------------------------------------------------------------------------------
This petition having been heard and reserved for orders, coming on
for pronouncement this day, Hon'ble Shri Justice Sheel Nagu pronounced
the following:
ORDER

1. This common order shall govern the disposal of W.P. No.14331/2023, W.P. No.4907/2023, W.P. No.8912/2023 and W.P. No.11861/2023 since these petitions involve common question of law based on similar facts, pleadings, grounds and reliefs sought.

1.1 For convenience, facts are taken from W.P. No.14331/2023.

2. W.P. No.14331/2023 filed under Article 226 of the Constitution of India, assails two orders dated 15.06.2023 (Annexure P/1) and 18.05.2023 (Annexure P/2).

2.1 By order dated 18.05.2023 (Annexure P/2) issued by Madhya Pradesh Pollution Control Board (for brevity 'Board'), respondent No.6

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was granted consent to operate Common Bio-Medical Waste Treatment Facility (for brevity 'CBMWTF') for the area falling within districts of Rewa, Sidhi and Singrauli for collection, transportation, treatment and disposal of Bio-Medical Wastes. This consent was granted u/S 25 of Water (Prevention and Control of Pollution) Act, 1974 (for brevity 'Water Act') read with Bio-Medical Waste Management Rules, 2016 (for short 'BMW Rules of 2016') framed in exercise of powers conferred by Section 6, 8 and 25 of Environment (Protection) Act, 1986 (for brevity 'EP Act').

2.3 Second challenge is to order dated 15.06.2023 (Annexure P/1) issued by Board restricting the area of five districts (Rewa, Satna, Panna, Sidhi & Singrauli) made available to petitioner under the earlier consent order dated 28.04.2021 to only two districts (Satna & Panna) thereby granting consent to operate CBMWTF to respondent No.6 in districts of Rewa, Sidhi and Singrauli.

3. It may not be out of place to mention that this Court while entertaining W.P. No.14331/2023 on 03.07.2023 stayed the impugned orders Annexure P/1 & Annexure P/2. However, later on, the said interim order was vacated on 29.09.2023. Pertinently, the stay was restored with the intervention of Apex Court vide order dated 30.10.2023 in Special Leave Petition (C) No.23852-23853/2023, relevant extract of which is reproduced below:-

"Having regard to the facts of this case and the fact that till 20.09.2023, the appellant herein had the benefit of an interim order passed by the High Court, we find that the same could not have been abruptly vacated. Therefore, interim order

- 11 -

dated 03.07.2023 is restored. The High Court is requested to dispose of the matters as expeditiously as possible and preferably within a period of three months from today.

All contentions on both sides on the maintainability as well as on merits of the case are left open to be advanced before the High Court.

The Appeals are disposed of in the aforesaid terms. Pending application (s) shall stand disposed of."

3.1 In view of above, it is obvious that question of maintainability is still open to be considered by this Court.

4. With the aforesaid grievance, the prayer sought in this petition is for quashment of aforesaid orders Annexure P/1 and Annexure P/2, primarily on the following grounds:

(i) The restriction of number of districts made available to petitioner for operating its CBMWTF is in gross violation of Madhya Pradesh Pollution Control Board Bio Medical Wastes Guidelines, 2016 (for brevity 'Guidelines of 2016'), in particular Clause 11 which stipulates in mandatory terms for establishment of one CBMWTF within radius of 75 kms extendable to 150 kms., provided the number of beds in the hospital within the area of operation do not exceed 10,000.

(ii) It is contended that CBMWTF operated by petitioner caters to various hospitals where cumulative bed-strength is less than 3,000 and thus, there was no cause for further restricting the area of operation of petitioner from five to only two districts.

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(iii) The consent granted to petitioner to operate CBMWTF for five districts was valid up to 30.06.2027 and therefore, there was no occasion to restrict the area of operation before the said date of validity.

(iv) The Division Bench of Andhra Pradesh High Court by final order dated 07.08.2019 in W.P. No.11250/2018 has set aside orders of similar nature as impugned herein for being violative of Guidelines of 2016.

(v) The recent report of 2017 criticizes mushrooming of further units of CBMWTF by inter alia revealing that present set up of CBMWTFs in five said districts is sufficient to cater to the need of all the hospitals within the said five districts, even if the waste produced by hospitals increases three times.

5. Learned counsel for respondent No.4-Board inter alia raises following objections:

(i) This petition is not maintainable for failure of petitioner to avail alternative, statutory remedy of appeal before State Government and also before National Green Tribunal, 2010 (for brevity 'NGT').

(ii) The BMW Rules of 2016 do not restrict grant of consent to new Units beyond the radius of 75 kms.

(iii) The NGT by order dated 04.12.2023 in Appeal No.5/2023(CZ) (M/s J.K. Medical Waste Management System vs.

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M.P. State Environment Impact Assessment Authority and five others) has threadbare considered the same contentions as raised herein and has found similar contentions and grounds raised herein, to be merit-less.

(iv) The Board further objects that WP No.28317/2023 (M/s Devi Surgico vs. Union of India and others) containing the same issue, has been dismissed by Co-ordinate Bench of this Court with liberty to said petitioner therein to avail alternative remedy of appeal under Rule 16 of BMW Rules of 2016.

5.1 Learned counsel for respondent No.2 raised solitary contention that in view of attending factual scenario where a civil suit instituted by petitioner had been dismissed as withdrawn without grant of liberty to raise the same issue afresh, this petition is hit by the doctrine of estoppel.

5.2 Learned counsel for respondent No.6 relying upon the submissions made by learned counsel for respondent No.4-Board and respondent No.2, further raises following objections:

(i) That W.P. No.14331/2023 and W.P. No.8912/2023 suffers from suppression of material facts of petitioner having filed civil suit for the same cause of action which later was withdrawn sans liberty to raise same cause of action afresh thereby disentitling petitioner to equitable relief under Article 226 of Constitution.

(ii) That petitioner cannot be allowed to blow hot and cold by challenging the impugned orders after participating in the selection

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process in which application of Respondent No.6 was allowed by issuance of impugned Annexure P/1.

(iii) That decision of Division Bench of Andhra Pradesh High Court is of no avail to petitioner since the factual scenario therein reveal that another Unit was being opened within the same district which is not the fact situation here.

(iv) Respondent No.6 has invested huge financial resources after issuance of impugned order Annexure P/1 but is unable to operate in view of the interim order subsisting in the present petition.

6. In reply to the contention of respondents, petitioner primarily submits as under:

(i) Appeal under Rule 16 of BMW Rules of 2016 is illusory since it amounts to appeal from Caesar to Caesar's wife or rather from Ceasar to Ceasar. It is submitted that impugned orders Annexure P/1 and Annexure P/2 were issued by the Board whereas the composition of the Board reveals that Principal Secretary of Department of Environment, Government of M.P. is the Ex-officio Chairman of the Board whereas the Appeal under Rule 16 of BMW Rules of 2016 is to the State Government. Thus, the appellate authority is the Principal Secretary of Department of Environment.

The Principal Secretary of Department of Environment cannot act as appellate authority against his own order passed in the capacity of Chairman of the Board.

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(ii) The withdrawal of Civil Suit by petitioner may lead to abandoning of remedy but not the right which can very well be raised in the equitable and plenary jurisdiction of this Court under Article 226 of Constitution.

(iii) The cause of action in the civil suit was distinct than the cause of action of present petition and thus, withdrawal of the civil suit cannot adversely affect the prospects in this petition.

7. Learned counsel for petitioner in support of the aforesaid contention has relied upon following judgments:

1. (2008) 14 SCC 58 (Ramesh Chandra Sankla and others)

2. (2017) SCC 634 (Himachal Pradesh Financial Corporation vs. Anil Garg and others) 7.1 Whereas learned counsel for respondents relied upon judicial verdicts rendered in following cases in support of their contentions:

1. (2008) 1 SCC 560 (Udyami Evam Khadi Gramodyog Welfare Sanstha and another vs. State of UP and others)

2. (2009) 8 SCC 582 (Delhi Development Authority vs. Rajendra Singh and others)

3. Order dated 08.12.2021 passed in Civil Appeal No(s) 7550-7553 of 2021 (Shri K. Jayaram and others vs. Bangalore Development Authority and others)

4. Order dated 12.05.2022 passed in WP© No.10119 of2022 by Orissa High Court, Cuttack (M/s Kamala Agencies vs. State of Odisha and others)

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5. Order dated 12.07.2023 passed in Civil Appeal No.8072/2010 (State of Orissa and another vs. Laxmi Narayan Das(Dead) through LRs. and others)

8. This Court now takes up the objection of respondents of non- availing of alternative statutory remedy before Appellate Authority/NGT.

8.1 Indisputably, impugned orders Annexure P/1 and Annexure P/2 both have been issued under the Water Act read with BMW Rules of 2016.

8.2 Annexure P/2 has been issued in the name of Chairman of the Board and thus, is an order passed by the Board. Similarly, Annexure P/1 has also been issued by the Member Secretary on behalf of the Board. Thus, there is no difficulty in treating both the impugned orders as having been issued by the Board.

8.3 Impugned order dated 18.05.2023 (Annexure P/2) granting consent to operate in favour of respondent No.6, is issued u/S 25 of Water Act r/w Section 21 of Air (Prevention and Control of Pollution) Act, 1981 (for brevity "Air Act") r/w Hazardous and other Wastes (Management and Transboundary Movement) Rules, 2016 (hereinafter referred to as "HWM Rules, 2016") and BMW Rules, 2016.

8.4 Other impugned order Annexure P/1 dated 18.06.2023 restricting the area of operation of petitioner from five districts to two districts (Satna & Panna) has also been issued under the provisions of same Acts and Rules as aforesaid since it merely causes amendment to the earlier arrangement.

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8.5 Thus, the provisions of aforesaid Acts and the Rules are required to be scrutinized to find out whether any alternative statutory remedy is available for challenging the impugned orders. Relevant provisions in the various relevant Enactments and Rules conferring aggrieved person with right to prefer an appeal/representation are reproduced below for ready reference and convenience:

Water (Prevention and Control of Pollution) Act, 1974 "Section 28. Appeals.--(1) Any person aggrieved by an order made by the State Board under section 25, section 26 or section 27 may, within thirty days from the date on which the order is communicated to him, prefer an appeal to such authority (hereinafter referred to as the appellate authority) as the State Government may think fit to constitute:

Provided that the appellate authority may entertain the appeal after the expiry of the said period of thirty days if such authority is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(2) An appellate authority shall consist of a single person or three persons, as the State Government may think fit, to be appointed by that Government.

(3) The form and manner in which an appeal may be preferred under sub-section (1), the fees payable for such appeal and the procedure to be followed by the appellate authority shall be such as may be prescribed.

(4) On receipt of an appeal preferred under sub-section (1), the appellate authority shall, after giving the appellant and the State Board an opportunity of being heard, dispose of the appeal as expeditiously as possible.

(5) If the appellate authority determines that any condition imposed, or the variation of any condition, as the case may be, was unreasonable, then,--

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(a) where the appeal is in respect of the unreasonableness of any condition imposed, such authority may direct either that the condition shall be treated as annulled or that there shall be substituted for it such condition as appears to it to be reasonable;

(b) where the appeal is in respect of the unreasonableness of any variation of a condition, such authority may direct either that the condition shall be treated as continuing in force unvaried or that it shall be varied in such manner as appears to it to be reasonable.

Section 29. Revision.--(1) The State Government may at any time either of its own motion or on an application made to it in this behalf, call for the records of any case where an order has been made by the State Board under section 25, section 26 or section 27 for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it may think fit:

Provided that the State Government shall not pass any order under this sub-section without affording the State Board and the person who may be affected by such order a reasonable opportunity of being heard in the matter.

(2) The State Government shall not revise any order made under section 25, section 26 or section 27 where an appeal against that order lies to the appellate authority, but has not been preferred or where an appeal has been preferred such appeal is pending before the appellate authority.

Section 33B Appeal to National Green Tribunal.- Any person aggrieved by,-

(a) an order or decision of the appellate authority under section 28, made on or after the commencement of the National Green Tribunal Act, 2010; or

(b) an order passed by the State Government under section 29, on or after the commencement of the National Green Tribunal Act, 2010; or

(c) directions issued under section 33A by a Board, on or after the commencement of the National Green Tribunal Act, 2010,may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act."

Bio-Medical Waste Management Rules, 2016

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"Rule 16. Appeal.-(1) Any person aggrieved by an order made by the prescribed authority under these rules may, within a period of thirty days from the date on which the order is communicated to him, prefer an appeal in Form V to the Secretary (Environment) of the State Government or Union territory administration.

(2) Any person aggrieved by an order of the Director - General Armed Forces Medical Services under these rules may, within thirty days from the date on which the order is communicated to him, prefer an appeal in Form V to the Secretary, Ministry of Environment, Forest and Climate Change.

(3) The authority referred to in sub-para (1) and (2) as the case may be, may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(4) The appeal shall be disposed of within a period of ninety days from the date of its filing."

Hazardous and other Wastes (Management and Transboundary Movement) Rules, 2016 "Rule 24. Appeal.- (1) Any person aggrieved by an order of suspension or cancellation or refusal of authorisation or its renewal passed by the State Pollution Control Board may, within a period of thirty days from the date on which the order is communicated to him, prefer an appeal in Form 12 to the Appellate Authority, namely, the Environment Secretary of the State.

(2) The Appellate Authority may entertain the appeal after expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) Every appeal filed under this rule shall be disposed of within a period of sixty days from the date of its filing."

Environment (Protection) Act, 1986 "Section 5. Power to give directions.- Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.

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Explanation--For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct--

(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) stoppage or regulation of the supply of electricity or water or any other service.

Section 5A Appeal to National Green Tribunal.- Any person aggrieved by any direction issued under section 5, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act."

National Green Tribunal Act, 2010 "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 dispute 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 to be filed within a further period not exceeding sixty days.

Section 16. Tribunal to have appellate jurisdiction.- Any person aggrieved by,-

(a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority

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under section 28 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under section 29 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board, under section 33A of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(d) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977 (36 of 1977);

(e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under section 2 of the Forest (Conservation) Act, 1980 (69 of 1980);

(f) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);

(g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under section 5 of the Environment (Protection) Act, 1986 (29 of 1986);

(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986);

(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986 (29 of 1986);

(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board

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under the provisions of the Biological Diversity Act, 2002 (18 of 2003), may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:

Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days."

9. When the factual matrix attending herein are tested on the anvil of aforesaid statutory provisions relating to alternative remedy then it is seen that Section 28 of Water Act vests aggrieved person with right to prefer an appeal against order passed by the Board inter alia u/S 25 of Water Act.

9.1 In the instant case, the impugned orders have been undoubtedly passed by the State Board u/S 25 of Water Act and therefore, an appeal lies to the State against the impugned order.

9.2 The objection raised by petitioner is that appeal from Ceasar to Ceasar since the impugned order has been passed by Chairman of the Board whereas appeal lies with Principal Secretary, Department of Environment, Government of M.P. who is also Ex-officio Chairman of the Board.

9.3 In this regard, learned counsel for State Board has categorically revealed after seeking instructions that the impugned orders have been issued by the Board and not by its Chairman alone. The Board comprises of various official and non-official members including Chairperson who

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happens to be Principal Secretary, Department of Environment, Government of M.P. 9.4 Thus, the impugned orders have been passed by a decision collectively taken by all Members of the Board including the Chairman and not by the Chairman alone. Thus, it cannot be said that appeal u/S 28 of the Water Act is illusory.

10. As regards Rule 16 of BMW Rules, 2016 is concerned, the said provision provides for an appeal available to a person aggrieved by any order made by prescribed authority (State Board) under these Rules.

10.1 One of the impugned order dated 18.05.2023 made by the State Board extending grant of consent to respondent No.6 is inter alia issued under the BMW Rules, 2016. Thus, provision of preferring appeal against the impugned order Annexure P/2 is available to petitioner before the Appellate Authority which is Principal Secretary, Department of Environment, Government of M.P.

11. As regards provision of Rule 24 of HWM Rules, 2016 is concerned, the same empowers a person aggrieved of the order passed by State Board of suspension/cancellation or refusal of authorization or its renewal to Principal Secretary, Department of Environment Department, Government of M.P. 11.1 The impugned order Annexure P/2 dated 18.05.2023 is an order of authorization in favour of respondent No.6 and therefore, can very well be

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assailed in an appeal before Principal Secretary, Department of Environment, Government of M.P.

12. Environment (Protection) Act, 1986 by amendment has incorporated Section 5A w.e.f. 18.10.2010 conferring right of appeal to approach NGT by a person who is aggrieved by any direction issued u/S 5 of EP Act.

12.1 Section 5 of EP Act is having power conferred on Central Government to give directions, which includes power to close, prohibit or regulate any industry, operation or process and also to stop or regulate supply of electricity or water or any other service.

12.2 By a notification issued on 12.04.2001, Central Government has delegated its power u/S 5 of EP Act to Chairman of the State Board/Committee.

12.3 However, learned counsel for petitioner by pointing out to the contents of the said notification dated 10 th April, 2001 published in Gazette of India dated 12th April, 2001, submits that delegation of its powers by Central Government to Chairman of the State Board is only in respect of subject matter of violations of standards and rules relating to bio-medical waste, hazardous chemicals, industrial solid waste and municipal solid waste including plastic waste.

12.4 As such, learned counsel for petitioner Shri Anshuman Singh has submitted that the impugned orders challenged in these petitions do not relate to subject of violations of standards and rules but are mere grant and restriction of grant of consent.

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13. We are in full agreement with the submission of learned counsel for petitioner that the nature and extent of delegation of power by Central Government with the Chairman of State Board for a limited purpose of violations of standards and rules but do not relate to the subject matter in question therein. Thus, remedy of appeal u/S 5A of EP Act is not available to petitioner.

14. Coming to National Green Tribunal Act, 2010, it is seen from bare reading of Section 14 of NGT Act which confers jurisdiction and power to the Tribunal that the Tribunal has jurisdiction over all civil cases which involved substantial question relating to environment which includes enforcement of any legal right relating to environment and that such substantial question arises out of implementation of the Enactment specified in Schedule-I which are as follows:

Schedule-I [See sections 14(1), 15(1), 17(1)(a), 19(4)(j) and 34(1)]

1. The Water (Prevention and Control of Pollution) Act, 1974;

2. The (Prevention and Control of Pollution) Cess Act, 1977;

3. The Forest (Conservation) Act, 1980;

4. The Air (Prevention and Control of Pollution) Act, 1981;

5. The Environment (Protection) Act, 1986;

6. The Public Liability Insurance Act, 1991;

7. The Biological Diversity Act, 2002.

14.1 Whereas Section 16 of NGT Act vests NGT with appellate jurisdiction over appellate orders passed under various environment related Enactments including Section 28 of Water Act.

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14.2 The question as to whether petitioner can raise the issue involved herein before NGT u/S 14 of NGT Act is debatable. However, since this Court finds that Section 16 of NGT Act is available to petitioner to be invoked after exhausting remedy of appeal under the Water Act or the Rules framed thereunder and other relevant Rules, this Court need not enter into the said debate qua Section 14 of the NGT Act.

15. From the aforesaid discussion, what comes out loud and clear is that orders impugned herein Annexure P/1 and Annexure P/2 can both be assailed u/S 28 of Water Act, under Rule 16 of BMW Rules, 2016 and under Rules 24 of HWM Rules, 2016 and; thereafter before National Green Tribunal u/S 16 of NGT Act.

16. Petitioner has not availed the aforesaid statutory remedy before the appellate forum available under different statutory provisions. This Court is of the considered view that several disputed questions of fact are involved in the instant petitions which ought not to be gone into while exercising writ jurisdiction and therefore, this Court declines interference on merits.

17. Since petitioner has been protected by an interim order passed by this Court on 03.07.2023 which continues to subsist till date, it would be appropriate to protect petitioner further to afford an opportunity to petitioner to avail alternative remedy of appeal before appellate forum.

17.1 It is thus directed that in case an appeal before appropriate appellate authority is filed by petitioner against the impugned orders within a period

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of 30 days from today then the same shall be considered and decided on merits without being dismissed on limitation alone.

17.2 It is further made clear that extension of the interim order is directed till the appellate forum decides afresh on the question of interim relief and while doing so the appellate authority shall not be influenced by the fact of this Court having passed interim order in these petitions and also by the fact of petitioner having approached this Court.

17.3 It is further made clear that until and unless appellate authority passes an order on the question of grant or refusal to grant interim order, the interim order passed by this Court on 03.07.2023 shall continue to protect petitioner.

18. This Court hastens to add that no comment on merits has been made leaving it to appellate authority to deal with the merit.

19. Pertinently, Writ Petition No.8912/2023 is a Public Interest Litigation (PIL) raising public cause of the 2017 report of the Board defeating the object behind BMW Management Rules, 2016 and Guidelines of 2016.

19.1 The aforesaid PIL though does not impugned any specific order against which an appeal can be filed under relevant statutory provisions but the NGT under NGT Act is vested with jurisdiction not only to adjudicate causes of personal nature but also public causes touching any aspect of environment. Thus, petitioner in Writ Petition No.8912/2023 can very well approach the NGT.

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20. With the aforesaid observations and directions, these petitions stand disposed of.

                                    (SHEEL NAGU)                                 (VINAY SARAF)
                                       JUDGE                                         JUDGE

 YS

Digitally signed by YOGESH KUMAR
SHRIVASTAVA
Date: 2024.04.18 16:44:25 +05'30'
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