Karnataka High Court

Trinity Meadows Apartment Owners ... vs The State Pollution Control Board on 4 January, 2023

Bench: Chief Justice, Ashok S.Kinagi

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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

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

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:

" ... 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".

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