M/S East Jaintia Coke vs . State Of Meghalaya & Anr.
2022 Latest Caselaw 626 Meg

Serial No. 03
Regular List
                           HIGH COURT OF MEGHALAYA
                                 AT SHILLONG

   WP(C) No. 259 of 2022                                Date of Order: 26.10.2022

   M/S East Jaintia Coke               Vs.           State of Meghalaya & Anr.

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


   Appearance:

   For the Petitioner/Appellant(s) :         Dr. A. M. Singhvi, Sr. Adv. with
                                             Mr. S.P. Mahanta, Sr. Adv.
                                             Mr. M. Lyngdoh, Adv.
                                             Mr. D. Dkhar, Adv.
                                             Ms. B. Dikshit, Adv.
                                             Mr. U. Khanna, Adv.

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

Mr. S. Sahay, Adv.

Ms. A. Thungwa, GA Ms. S. Laloo, GA (For R 1) Dr. A. Todi, Adv. (For R 2).

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

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





 ORAL:

1. This matter has been posted today for admission hearing on the

question of the maintainability of the instant writ application.

2. The brief facts are that, the petitioner is aggrieved with the

notification dated 23.12.2020, issued by the respondent No. 2, State

Pollution Control Board under Section 17(1)(n) under the Water

(Prevention and Control of Pollution) Act, 1974 and Section 17(1)(h) of

the Air (Prevention and Control of Pollution) Act, 1981, whereby

norms/criteria have been prescribed for siting of Coke plants of various

capacities, which it is alleged is without jurisdiction and ultra vires the

Air and Water Pollution Acts.

3. I have heard learned counsels for the parties.

4. Dr. A.M. Singhvi, learned Senior counsel with Mr. S.P.

Mahanta, learned Senior counsel assisted by Mr. M. Lyngdoh, learned

counsel for the petitioner, on the question of maintainability has

submitted that the petitioner has been constrained to approach this Court

seeking invocation of powers under Article 226 of the Constitution, as

the impugned notification is without jurisdiction and has been passed

with total disregard to the statutory provisions of the Air and Water

Pollution Acts. The attention of this Court, has been drawn to Section

17(1)(n) of the Water Pollution Act, which the learned Senior counsel

submits, specifically stipulates that one of the functions of the State

Pollution Control Board, with regard to siting, is to advise the State

Government with respect to the location of any industry, the carrying on

of which is likely to pollute a stream or a well. It is contended that, a

plain reading of the said provision, thus indicates that, the impugned

notification issued by the State Pollution Control Board which is patently

not advisory, but a prescription of norms is clearly ultra vires the statute,

and without any jurisdiction.

5. It is further contended that, though objections have been raised

on the ground of alternative efficacious remedy, that can be availed of

before the National Green Tribunal (NGT) coupled with the fact that, the

NGT itself, had been seized with a similar matter, wherein the said

notification dated 23.12.2020, has been endorsed and held to be valid; it

is submitted that, the matter cannot be examined, or relief be sought

therefrom, inasmuch as, the NGT being a tribunal is not vested with

plenary jurisdiction.

6. The learned Senior counsel has placed reliance on the following

judgments, to advance his arguments that notwithstanding the NGT Act,

remedy before the High Court, continues to be available under Article

226 of the Constitution of India.

i) Madhya Pradesh High Court Advocates Bar Association v. Union of India & Ors. (2022) SCC OnLine SC 639.

ii) Kollidam Aaru Pathukappu Nala Sangam v. Union of India (2014) 5 CTC 397 (Madras HC).

iii) Whirlpool Corpn. v. Registrar of TradeMarks, Mumbai (1998) 8 SCC 1.

7. The learned Senior counsel while referring to the above noted

judgments, submits that the NGT does not oust the jurisdiction of the

High Courts, under Article 226 of the Constitution, and that prerogative

of writ jurisdiction of High Courts is neither taken away nor it can be

ousted, being a part of the basic structure of the Constitution. It is further

submitted that, as held in the case of Whirlpool Corpn. (supra), that

alternative remedy has been consistently held, not to operate as a bar, in

at least three contingencies, of which one of them is when the order or

proceedings are wholly without jurisdiction.

8. Learned Senior counsel has also submitted that the NGT does

not have power of judicial review, and cannot strike down rules and

regulations made under a certain Act or Acts, and has cited the following

decisions:

i) Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd. (2019) SCC OnLine SC 221=(2019) 19 SCC 479.

ii) Rajeev Kumar v. Hemraj Singh Chauhan (2010) 4 SCC 554.

9. It has been further argued that, the petitioner herein was not a

party to Original Application No. 100/2021/EZ (Shri. Pynbait Sutnge

vs. Government of Meghalaya) which was decided by the NGT on 8th

July, 2022, wherein the notification dated 23.12.2020, has been found to

have statutory force, and the instant matter being parallel and on the

question of jurisdiction stands on a different footing, as the relief sought

herein is not available before the NGT. He therefore submits that, this

being the situation, there is no bar for this Court to admit the matter for

consideration.

10. Mr. A. Kumar, learned Advocate General assisted by Mr. S.

Sahay, learned counsel for the respondent submits that even though the

impugned notification has been issued under Section 17(1)(n) and

17(1)(h) of the Water and Air Pollution Acts respectively, the same is

well within the powers of the State Pollution Control Board, as stipulated

by the Act, by the application of Sections 24 and 25 thereof, which has

cloaked the Boards with ample power to prohibit and restrict the setting

up of any activity, that may cause pollution. The learned Advocate

General has alluded to the powers of the Board, in granting Consent to

Establish and Consent to Operate, and submits that the source of power

in issuing the impugned notification flows from these provisions.

11. It is also contended that, the matter having been conclusively

disposed of by the NGT, in the case of Shri. Pynbait Sutnge vs.

Government of Meghalaya, wherefrom no appeal has been preferred,

the directions contained therein, are being followed and implemented by

the State respondents, and as such, if the instant matter is entertained,

and a conflicting decision arrived at, it would lead to an anomalous

situation. He further submits that, the judgment of the NGT operates as

a judgment in rem, and though the petitioner is not party to the same, it

is bound nonetheless. He therefore prays that, in view of the situation of

the matter, the instant case is not maintainable and is liable to be

dismissed on the ground of maintainability.

12. Having heard learned counsels for the parties, as observed

earlier, the only point in contention is on the point of law, which is

whether the impugned notification is ultra vires, the Air and Water

Pollution Acts. On perusal of the provisions of the Water and Air

Pollution Control Acts, as given in Section 17(1)(n) and 17(1)(h)

respectively, debatable questions have arisen as to whether the State

Pollution Control Board has acted without jurisdiction in issuing the

impugned notification dated 23.12.2020. This aspect, undeniably

deserves the attention of this Court, in discerning as to whether, read with

the other provisions that is, Section 24 and 25, the said notification can

be sustained as advocated by the State respondents. The central fact,

however, is that the pointed challenge is to the notification for which it

has been argued, no remedy is available before the NGT.

13. It is undisputed that, the NGT has no powers of judicial review,

which has also been held so, in the case cited by the petitioner that is,

Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd.

(supra), wherein the Hon'ble Supreme Court in Para - 43 has held as

follows:

"43. In BSNL v. TRAI.....................In the present case, it is clear that Section 16 of the NGT Act is cast in terms that are similar to Section 14(b) of the Telecom Regulatory Authority of India Act, 1997, in that appeals are against the orders, decisions, directions, or determinations made under the various Acts mentioned in Section

16. It is clear, therefore, that under the NGT Act, the Tribunal exercising appellate jurisdiction cannot strike down rules or regulations made under this Act. Therefore, it would be fallacious to state that the Tribunal has powers of judicial review akin to that of a High Court exercising constitutional powers under Article 226 of the Constitution of India. We must never forget the distinction between a superior court of record and courts of limited jurisdiction that was, in the felicitous language of Gajendragadkar, C.J., in Powers Privileges and Immunities of State Legislatures in Re: made in the following words: (SCR p. 499: AIR p. 789 para 138)

"138. We ought to make it clear that we are dealing with the question of jurisdiction and are not concerned with the propriety or reasonableness of the exercise of such jurisdiction. Besides, in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction.

"Prima facie", says Halsbury, "no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.

For this reason also, we are of the view that the State Government order made under Section 18 of the Water Act, not being the subject matter of any appeal under Section 16 of the NGT Act, cannot be "judicially reviewed" by the NGT. Following the judgment in BSNL (supra), we are of the view that the NGT has no general power of judicial review akin to that vested under Article 226 of the Constitution of India possessed by the High Courts of this country. Shri Sundaram's strong reliance on the NGT judgment dated 17.07.2014 in Wilfred v. Ministry of Environment and Forests must also be rejected as this NGT judgment does not state the law on this aspect correctly. This contention is also without merit, and therefore, rejected."

14. On the point of jurisdiction of the High Court under Article 226

and 227 of the Constitution, this Court finds force in the arguments of

the petitioner, inasmuch as, nothing in the NGT Act, ousts the

jurisdiction of the High Court and that, exercise of discretion, in

accordance with law, will depend on the facts of each particular case. In

this regard, the decision rendered in Madhya Pradesh High Court

Advocates Bar Association v. Union of India & Ors. (supra), as placed

by the petitioner, the relevant paras which are quoted below, supports

this position:

"12. The learned Attorney General next contends that the remedy before the High Court for a litigant under Article 226 and 227 continues to be available notwithstanding the enactment of the NGT Act and the provision for appeal to the Supreme Court under Section 22 of the NGT Act. It is specifically submitted by the learned AG that the High Court's power of judicial review remains unaffected by the NGT Act as it is a part of the basic structure of our constitution, as was declared in L Chandra Kumar v. UOI.

20. Apart from the clear enunciation on legal position to the effect that the NGT is within the purview of Article 226 and 227 jurisdiction of the High Courts, the learned Attorney General on behalf of the Union of India has also

made submissions consistent with L. Chandra Kumar [supra] and conceded the legal position.

22. It is also noteworthy that nothing contained in the NGT Act either impliedly or explicitly, ousts the jurisdiction of the High Courts under Article 226 and 227 and the power of judicial review remains intact and unaffected by the NGT Act. The prerogative of writ jurisdiction of High Courts is neither taken away nor it can be ousted, as without any doubt, it is definitely a part of the basic structure of the Constitution. The High Court's exercise their discretion in tandem with the law depending on the facts of each particular case. Since the High Court's jurisdiction remain unaffected, the first question is answered in the negative, against the petitioners."

15. On the other aspect that is, the disposal of the NGT of a similar

matter, wherein, the impugned notification has met with the approval of

the NGT, in the considered view of this Court, the same though, having

a bearing in the present proceedings cannot however, operate as a bar in

exercise of jurisdiction under Article 226, in examining the legality of

the impugned notification. Though, conflicting orders of the NGT and

the High Court may lead to an anomalous situation, a Constitutional

Court's Order however, would prevail.

16. For the foregoing reasons, the instant writ application is held to

be maintainable and is hereby admitted for further consideration.

17. List this matter on 21st November, 2022 for further orders.

Judge

Meghalaya 26.10.2022 "D.Thabah-PS"