High Court of Meghalaya

Shri. Wesley Doloi vs . State Of Meghalaya & Ors. on 19 April, 2022

Serial No. 01
Supplementary List
                            HIGH COURT OF MEGHALAYA
                                  AT SHILLONG


  WP(C) No. 42 of 2022                              Date of Decision: 19.04.2022


  Shri. Wesley Doloi                       Vs.      State of Meghalaya & Ors.

  Coram:
                         Hon'ble Mr. Justice H. S. Thangkhiew, Judge


  Appearance:

  For the Petitioner/Appellant(s) :        Ms. M. Arora, Sr. Adv. with
                                           Mr. A. Kataria, Adv.
                                           Mr. P. Yobin, Adv.

  For the Respondent(s)             :      Mr. A. Kumar, AG with

Ms. R. Colney, GA.

Mr. R. Gurung, GA.

Mr. A.S. Pandey, Adv.

  i)         Whether approved for reporting in                 Yes/No
             Law journals etc.:

  ii)        Whether approved for publication
             in press:                                         Yes/No

                           JUDGMENT AND ORDER

1. The brief facts as portrayed by the petitioner, is that the

petitioner is a valid mining lease holder for mining of granite, boulders

and stone and that he has also set up crusher units with all requisite

statutory permits and clearances issued by the respondents. In the course

of operations, it appears the petitioner was served with notices under

Section 33A and 31A of the Water and Air (Prevention and Control of

Pollution) Acts, respectively, demanding environmental compensation,

and that the respondents to realise the compensatory amount have seized

the machinery of the petitioner and put up the same for auction vide the

impugned Auction Sale Notice dated 14.02.2022.

2. As mentioned above, the plea put up by the petitioner is that he

is operating under valid permissions and a duly executed mining lease and

in support thereof, has annexed documents purportedly showing the

various clearances/permissions at Annexure-5 of the writ petition. It is

also contended by the writ petitioner that in the absence of any law

governing or regulating establishment of stone crushers, the stone crusher

unit set up by the petitioner cannot be termed as illegal to warrant closure

and seizure of the machinery as has been done by the respondents. The

further case put up by the petitioner is that, on receipt of demand notices

under the Air and Water (Prevention and Control of Pollution) Acts,

replies had been filed but the same was disregarded and the impugned

Auction Sale Notice had been issued.

3. The petitioner has also made reference to order dated

26.08.2019, passed in O.A No. 48 of 2019, by the National Green Tribunal

(NGT), wherein a committee was constituted to check rampant illegal

mining of gravel, stone in the Ri-Bhoi District, and that it appears the

respondents in pursuance thereto, have conducted inspections and

prepared a list of persons alleged to be involved in legal mining, and on

the basis of this list the petitioner had been served with demand notices.

4. Ms. M. Arora, learned senior counsel assisted by Mr. P. Yobin,

learned counsel for the petitioner has submitted that the impugned Auction

Sale Notice dated 14.02.2022, is unsustainable as because, the stated

inspections by the respondents of the quarry were carried out in a most

arbitrary manner and in blatant violation of the principles of natural

justice. It is further contended that, the impugned demand notices

purportedly issued in exercise of Section 33A of the Water (Prevention

and Control of Pollution) Act, 1974 and Section 31A of the Air

(Prevention and Control of Pollution) Act, 1981 are without any authority

of law as the petitioner possesses all the requisite clearances for the

operation of stone quarries and further the said notices not being directions

for closure, prohibition and regulation cannot be challenged under Section

16 of the NGT Act.

The learned senior counsel on the assertion of the respondents

that materials have been suppressed, has submitted that, the details and

particulars of the legal quarries and crusher units against which

environmental compensation has been imposed, have been provided in the

rejoinder affidavit, but the respondents for reasons best known to them

have declared the quarries and crusher units as illegal by showing wrong

GPS co-ordinates.

5. The learned senior counsel submits that inspite of the

availability of alternate remedy, in view of the arbitrary actions of the

respondents and the manner in which the demand notices, seizure and the

Auction Sale Notice have been issued, the instant case is a fit case for

interference by this Court in exercise of powers under Article 226 of the

Constitution. In support of this contention, reliance has been placed on the

case of Radha Krishan Industries Vs. State of Himachal Pradesh & Ors.

reported in (2021) 6 SCC 771.

6. In reply to the above noted submissions, the learned Advocate

General has placed the affidavit filed on behalf of the respondents and has

vehemently contended that the writ petition is liable to be dismissed for

concealment of facts and that the writ petition is rife with factual

inaccuracies, which would by itself disentitle the petitioner to any relief.

The learned AG submits that the documents and facts which were

introduced by the writ petitioner by way of the rejoinder affidavit, are a

clear admission of concealment of facts in the writ petition; and even

otherwise a rejoinder affidavit is not a part of pleadings. It is also argued

that the writ petition is not maintainable, in view of the existence of

alternative remedy and the presence of disputed questions of fact, apart

from being unsustainable on merits. To illustrate these contentions, the

learned Advocate General submits that the respondents in their counter

affidavit, have detailed that the petitioner was operating 5(five) units (3

quarries and 2 crusher units), and that all these units had been found guilty

of violations and that action has been taken accordingly. It is further

submitted that, the petitioner far from disputing these facts, has admitted

in the rejoinder, that each of the 5 (five) units of the petitioner have been

found to be illegal and have been sealed and the units have been detailed

in paragraph-8 of the rejoinder itself. Therefore, he submits what was

shown to be an action against only 1(one) stone crusher unit in the writ

petition, has been admitted by the writ petitioner in the rejoinder as being

an action against 5 (five) units. This the learned AG contends is a clear

case of suppression, concealment and has referred to the judgment of this

Court rendered in the order dated 08.03.2022, in the case of Aynal Haque

Vs. State of Meghalaya & Ors. (W.A No. 21 of 2021), wherein this Court

had deprecated the conduct of the petitioner on presenting a false case

before the Court, and submits that the observations in the cited case

squarely apply to the present case, as on these misrepresentations had

caused this Court to pass interim orders in favour of the petitioner.

7. The learned AG to further show how facts have been concealed

and incorrect facts have been set out in the writ petition, has referred to

the impugned show cause notices dated 20.11.2020, Nos. 19 and 20,

which he submits were not issued to the petitioner at all but to another

person, and that though the petitioner has impugned a reminder dated

29.04.2021(No. 174) issued to him, he has not produced the show cause

notice dated 20.11.2020 (No. 31) for which the reminder dated

29.04.2021, was issued. The petitioner, he submits to confuse the facts has

placed a representation dated 20.12.2021, which is in relation to an

entirely different show cause notice dated 20.11.2020 (No. 20), and has

further impugned a reminder dated 29.04.2021(No. 171), which he is not

concerned with.

8. The learned AG submits that the plea of the writ petitioner

before this Court, is against the orders of environmental compensation and

as such, the presence of alternative remedy before the NGT which the

petitioner can avail of cannot be disregarded in any manner. In this

context, the learned AG has place reliance on the decision of this Court in

the case of Dayanidhi Ventures Pvt. Ltd. Vs. Meghalaya State Pollution

Control Board & Ors. in W.P(C) No. 338 of 2021, where vide order dated

16.12.2021, this Court on similar facts and situation had dismissed the

writ petition. He further submits that, there is no difference in the facts

and contentions raised in the instant petition and in the case of Dayanidhi

Ventures (supra). He lastly, submits that even otherwise the writ petition

is not maintainable in view of the disputed questions of fact. He lastly

submits that, the writ petitioner on all the above counts has abused the

process of law and the writ petition deserves dismissal with heavy cost.

9. Having heard learned counsel for the parties and examined the

materials on record, it can be easily discerned that the matter is exclusively

within the domain of environmental infractions for which show cause

notices and demand for environmental compensation has been made. As

submitted by the respondents, and on perusal of writ petition and the

rejoinder filed thereto by the writ petitioner, severe inconsistencies and

factual inaccuracies are present. It appears that the writ petitioner has

attempted to create a cloud of confusion over the factual aspects of the

proceedings apart from trying to put up a case of alleged arbitrariness on

the part of the respondents.

10. It is apparent from the pleadings itself that the petitioner is well

aware as to the genesis of the action of the respondents in the proceedings

which have finally culminated in the Auction Sale Notice dated 14-02-

2022, which is impugned herein. This observation is made in view of the

fact that the writ petitioner has pointedly referred to the Original

Application No. 48 of 2019 (EZ) in the matter of Shri. Jitul Deka vs.

Union of India & Ors. It is undisputed that orders were issued under

Section 33 A of the Water (Prevention and Control of Pollution) Act, 1974

and Section 31 A of the Air (Prevention and Control of Pollution) Act,

1981 which were pursuant to the directions of the National Green Tribunal

in OA. No. 48 of 2019 (EZ). The proceedings initiated against the

petitioner are therefore inextricably connected and interlinked with the

orders emanating from the NGT in O.A. No. 48 of 2019 (EZ). In this

context therefore, the judgment of this Court rendered in Dayanidhi

Ventures (Supra) will squarely be applicable and as such the presence of

alternate efficacious remedy has made the instant application at this stage,

not maintainable before this Court.

11. Though attempts have been made by the writ petitioner to make

out a case that the actions of the respondents are illegal, arbitrary and

vitiated for non-observance of the principles of natural justice, which

would warrant the exercise of discretionary powers of this Court under

Article 226, the nature, content and pleadings of the writ petition which

are replete with inconsistencies coupled with suppression of material facts

which have been revealed by the counter affidavit of the respondents, will

surely disentitle the case of the petitioner from such consideration by this

Court. To illustrate this point, the petitioner has nowhere mentioned in his

petition that three of his stone quarries have been suspended by the

Divisional Forest Officer (DFO) vide order dated 24-10-2019 and that the

suspension order has found place in the final report submitted to the

National Green Tribunal in OA No. 48 of 2019 (EZ). This fact is evident

from the relevant extract of the report which is annexed at Annexure-R/3

to the counter affidavit wherein the name of the petitioner and location of

the mine has appeared for the three quarries.

12. The Hon'ble Supreme Court by various judgments has

deprecated the nondisclosure of relevant and complete facts while seeking

remedy under Article 226 of the Constitution of India. A case in point, is

the decision in Prestige Lights Ltd. vs. State Bank of India (2007) 8 SCC

449 where in paragraphs 33 to 35 it has been held as follows:

"33. It is thus clear that though the appellant- Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all

the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.

34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners (1917) 1 KB 486: 86 LJ KB 257: 116 LT 136, in the following words:

It has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should made a full and fair disclosure of all the material facts- -facts, not law. He must not misstate the law if he can help it - - the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the imperfect statement.

[Emphasis Supplied]

35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the

conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."

[Emphasis Supplied]

13. Another glaring factor is the presence of disputed questions of

facts which this Court is not in a position to determine in its writ

jurisdiction.

14. For the aforementioned reasons, the instant writ petition is held

to be not maintainable and is liable to be dismissed. On the other aspect

of concealment of facts and presentation of inaccuracies before this

Court, the petitioner is directed to pay a cost of Rs.50,000/- (Rupees Fifty

Thousand only) which shall be made over to the Member Secretary of

the Meghalaya State Legal Services Authority (MSLSA) to be used for

Legal Awareness Programmes and Legal Aid. The said payment shall be

made within 3(three) weeks from the date of this order.