Madras High Court
Arkay Energy (Rameswaram) ... vs Tamil Nadu Pollution Control ... on 6 September, 2021
W.A.(MD)No.1699 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
and
THE HONOURABLE MRS. JUSTICE J.NISHA BANU
W.A.(MD)No.1699 of 2021
and
WMP(MD)Nos.7277 of 2021
Arkay Energy (Rameswaram) Limited,
Rep. by its authorised Signatory,
No.20 (Old No.29), Chamiers Road,
Nandanam,
Chennai – 600 035. ... Appellant / Petitioner
Vs.
1.Tamil Nadu Pollution Control Board,
Rep. by its Chairman,
No.76, Mount Salai,
Guindy, Chennai – 600 032
2.Tamil Nadu Transmission Corporation Ltd.,
(TANTRANSCO)
Rep. by its Chairman,
NPKR Ramasamy Maaligai,
144, Anna Salai,
Chennai – 600 002.
3.Tamil Nadu Generation and Distribution Company Ltd.,
(TANGEDCO).
Rep. by the Chairman Cum Managing Director,
No.144, Anna Salai,
Chennai – 600 002. ... Respondents / Respondents
1
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.1699 of 2021
PRAYER: The Writ Appeal filed under Clause 15 of the Letters
Patent Act, to set aside the fair and decretal order, dated 26.08.2021,
passed in W.P.(MD)No.15532 of 2021.
For Appellant : Mr.Krishnan, Sr.Counsel
For M/s.Sarvabhauman Associates
For Respondent-1 : Mrs.Vijayalakshmi Natarajan
JUDGMENT
(Judgment of this Court was made by V.BHARATHIDASAN, J.)
The Writ Appeal has been filed challenging the order passed by the
Learned Single Judge in W.P(MD)No.15532 of 2021, dismissing the
petitioner’s Writ petition, and directing to file an appeal before the National
Green Tribunal (in short, 'NGT').
2. The Writ petition has been filed against the closure order
passed by the 1st respondent / Pollution Control Board (in short, Board),
under Section 33(A) of the Water (Prevention and Control of Pollution) Act,
1974 (for short, 'the Water Act') and Section 31(A) of the Air (Prevention
and Control of Pollution) Act, 1981 (for short, 'the Air Act') as there were
substantial violations of consent order issued by the Board.
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.1699 of 2021
3. Mr.M.S.Krishnan, the learned Senior Counsel, appearing for the
appellant would contend that the order impugned in the writ petition is a
composite order, earlier the appellant has submitted its objection to the
show-cause notice issued by the Pollution Control Board and also made a
substantial compliance of all the deficiencies, as pointed out by the
Pollution Control Board, without considering the same, the Pollution Control
Board has passed the closure order. The learned Senior Counsel pointed
out that the appellant is running the Industry from 2006 onwards and all of
a sudden, the respondent Pollution Control Board, with a malafide intention,
ordered closure, and that issue cannot be decided by the National Green
Tribunal. In the said circumstances, the appellant filed the Writ petition
and the Learned Single Judge, without considering the same, dismissed the
Writ petition, directing the appellant to approach the NGT. According to
the learned Senior Counsel, the Honble Supreme Court, in number of cases,
has held that, despite the appeal provided before the National Green
Tribunal, the aggrieved person can maintain a Writ petition, and hence, the
Writ petition is maintainable before this Court. To support his contentions,
the learned Senior Counsel relied upon the Judgment of the Hon’ble
Supreme Court in Tamil Nadu Pollution Control Board Vs. Sterlite
Industries (I) Ltd., reported in (2019 (19) SCC 479) and also an order
passed by the National Green Tribunal, Southern Zone, Chennai, in Appeal
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.1699 of 2021
No.10 of 2020 between M/s.Fatima Poultry Farm Vs. Telangana State
Pollution Control Board.
4. Per contra, Mrs.Vijayakumari Natarajan, the learned counsel
appearing for the 1st respondent / Pollution Control Board would submit
that, both the Air Act and Water Act are the Scheduled Act in National
Green Tribunal Act and hence, against the order passed by the Pollution
Control Board only an appeal lies before the National Green Tribunal, the
petitioner cannot maintain the Writ Petition before this Court. Considering
the aforesaid reasons, the Learned Single Judge has rightly dismissed the
Writ petition, directing the petitioner to file an appeal by granting 10 days
time and without complying with the order, the appellant cannot maintain
the Writ Appeal.
5. We have considered the rival submissions and perused the records.
6. As rightly contended by the learned counsel appearing for the 1st
respondent that both the Air Act and Water Act are Schedule Act under the
National Green Tribunal Act, 2010, and against the order passed by the
Pollution Control Board only an appeal lies before the National Green
Tribunal, under Section 16 of the Act. The petitioner cannot invoke Article
226 of the Constitution of India, to challenge that order, when an effective
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.1699 of 2021
alternative remedy is available to the appellant. The Learned Single Judge
has rightly considered the same and held that the appellant should file an
appeal before the National Green Tribunal, we find no error in the order.
Sofar as the judgments relied upon by the learned Senior Counsel is
concerned, in those cases, the Writ petition has been entertained on
different fact and it is not factually applicable to the present case. In the
said circumstances, the aforesaid judgments are not applicable to the facts
of this case.
7. However, considering the fact that filing appeal before the National
Green Tribunal will take considerable time, we are inclined to grant 30 days
time to the appellant to file the appeal before the National Green Tribunal
and the appellant is directed to file the appeal on or before 06 th October
2021, till then, the 1st respondent is directed not to take any precipitative
action to close the industry.
8. In the result, the Writ Appeal is dismissed with the above
directions. No costs. Consequently, the connected miscellaneous petition is
closed.
(V.B.D, J.) (J.N.B, J.)
06.09.2021
Index : Yes / No
Internet : Yes / no
mpk
Note : Issue order copy on 08.09.2018
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.1699 of 2021
To
1.The Chairman,
Tamil Nadu Pollution Control Board,
No.76, Mount Salai,
Guindy, Chennai.
2.The Chairman,
Tamil Nadu Transmission Corporation Ltd.,
(TANTRANSCO)
NPKR Ramasamy Maaligai,
144, Anna Salai,
Chennai – 600 002.
3.The Chairman Cum Managing Director,
Tamil Nadu Generation and Distribution Company Ltd.,
(TANGEDCO).
No.144, Anna Salai,
Chennai – 600 002.
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.1699 of 2021
V.BHARATHIDASAN, J.
and
J.NISHA BANU, J.
MPK
W.A.(MD)No.1699 of 2021
06.09.2021
https://www.mhc.tn.gov.in/judis/
