Orissa High Court
Jugal Kishore Mishra vs State Of Odisha And Others on 16 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 13692 of 2023
Jugal Kishore Mishra .... Petitioner
Mr.SubirPalit, Sr. Adv.
along with Mr.Pratik Dash,Adv.
-versus-
State of Odisha and others .... Opposite Parties
Mr.Ch.S.Mishra,AGA
Mr. D.Nayak,AGA
Mr. D.R. Bhokta, CGC
For O.P.Nos.,4,5 and 13
Mr. S.K.Mishra,Adv.
(for O.P.No.2)
CORAM:
DR.JUSTICE S.K. PANIGRAHI
Order ORDER
No. 16.08.2023
05.
1. This matter is taken up through hybrid arrangement.
2. Heard learned Senior Counsel for the Petitioner, learned
counsel for the State and learned counsel for the opposite
party Nos. 2, 4, 5 and 13.
3. The Petitioner has filed the present Writ Petition challenging
the order dated 18.04.2023 passed by the learned National
Green Tribunal Eastern Zone Bench, Kolkata in O.A. No.
83/2022/EZ (I.A No. 189/2022/EZ) wherein the learned
Tribunal issued direction to the opposite parties to initiate
criminal proceedings against the officers including the
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Location: Orissa High Court, Cuttack
Date: 19-Aug-2023 14:34:48
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petitioner for their alleged role in taking unilateral decisions
for auction of the morrum quarry ignoring the Sabik Record
of Rights and also the role of the petitioner in colluding with
lease holders in fudging the records and concealing the
correct records.
4. At the outset, learned counsel for the petitioner submits on
the jurisdictional issue of filing Writ Petition challenging the
order passed by the National Green Tribunal instead of filing
the Appeal provided under Section 22 of the National Green
Tribunal Act. According to him, the High Court is competent
to hear the writ petition filed by the petitioner challenging the
order dated 18.04.2023 passed by the National Green Tribunal
Eastern Zone Bench, Kolkata. He further relied on a decision
of Supreme Court in the case of Madhya Pradesh High
Court Advocates Bar Association and Another v. Union of
India and another1 to buttress his points.
5. This Court is of the view that a constitutional court's power
of judicial review is the shield every suitor uses against the
arrows of alternative remedy shot at him. On countless
occasions, the Courts have ruled, are ruling, and will continue
to rule on this issue. As the Hon'ble Kerala High Court has
1
2018 SCC OnLine Ker 8622
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Location: Orissa High Court, Cuttack
Date: 19-Aug-2023 14:34:48
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observed in Indus Logistics v. Commissioner of Central
Excise and Customs2, the issue of alternative remedy is every
High Court's Sisyphean task. This court boldly wears the
question on its back and navigates a tricky slope, attempting
to carry this issue to the zenith where it may remain finally
answered and unambiguous. In every attempt made by court
to answer this issue, it hopes that it has triumphed and will
remain the last word. But in the very next case, the issue is
seen rolled down to the bottom of the slope. The Court is
required to roll up its sleeves and toil once again up the
slippery decisional slope, all over. As we embark to do here.
6. The Supreme Court in Municipal Corporation of Greater
Mumbai v. AnkitaSinha3, has already embarked on a detailed
study of the objective and scope of the National Green
Tribunal Act, 2010. The NGT is set up under the constitutional
mandate under Entry 13 List I of Schedule VII to enforce
Article 21 in regard to the environment and the Tribunal was
conferred special jurisdiction for enforcement of
environmental rights. It thus appears that the role of the NGT
was not simply adjudicatory, but it also had the equally vital
role which is preventive, ameliorative, or even in the remedial
2
2021 SCC OnLine SC 897
3
(2019) 18 SCC 494
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Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 19-Aug-2023 14:34:48
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realm. The functional capacity of the NGT was intended to
leverage wide powers to do justice in the field of
environment. The NGT came into existence as a specialized
institution established for the enforcement of environmental
rights emanating from Article 21 of the Constitution.
7. After the NGT was set up, the Supreme Court pertinently
directed the transfer of environmental cases pending before
the High Courts to the NGT for expeditious and specialized
justice for all concerned. The Supreme Court also actively
oversaw the implementation of the Act and creation of the
NGT itself through its various Orders. Those also pertained
to, inter-alia, the location of the NGT benches. In other words,
the Supreme Court was not only conscious of the location of
the benches of the NGT but also had given its imprimatur to
the NGT's creation and other aspects.
8. Explaining the purpose to constitute the specialized court to
deal with environmental issues, in Mantri Techzone (P)
Ltd. v. Forward Foundation4, the Supreme Court made the
following observation, on the status of the NGT:
"40. The Tribunal has been established under a
constitutional mandate provided in Schedule VII
List I Entry 13 of the Constitution of India, to
4
(2015) 6 SCC 773
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Location: Orissa High Court, Cuttack
Date: 19-Aug-2023 14:34:48
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implement the decision taken at the United
Nations Conference on Environment and
Development. The Tribunal is a specialised
judicial body for effective and expeditious
disposal of cases relating to environmental
protection and conservation of forests and other
natural resources including enforcement of any
legal right relating to the environment. The right
to healthy environment has been construed as a
part of the right to life under Article 21 by way of
judicial pronouncements. Therefore, the Tribunal
has special jurisdiction for enforcement of
environmental rights."
With the above prefatory contexts in mind, the new
challenges to be looked into.
9. The Supreme Court in the case of Union of India v. Major
General Shri Kant Sharma5, after considering the Scheme and
purpose of Articles 226 and 227 of the Constitution of India
including the powers to judicial review in a matter where the
statutory alternative remedy is available and it has observed
as under:
"16. It can, thus, be said that this Court has
recognised some exceptions to the rule of
alternative remedy. However, the proposition laid
down in Thansingh Nathmal v. Supt. of
Taxes similar judgments that the High Court
will not entertain a petition under Article 226 of
5
(2016) 10 SCC 571
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Location: Orissa High Court, Cuttack
Date: 19-Aug-2023 14:34:48
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the Constitution if an effective alternative
remedy is available to the aggrieved person or the
statute under which the action complained of has
been taken itself contains a mechanism for
redressal of grievance still holds the field.
30. In Executive Engineer, Southern Electricity
Supply Company of Orissa Limited
(SOUTHCO) v. Sri Seetaram Rice Mill, (2012)
2 SCC 108, a three-Judge Bench held:
"80. It is a settled canon of law that the High
Court would not normally interfere in exercise of
its jurisdiction under Article 226 of the
Constitution of India where statutory alternative
remedy is available. It is equally settled that this
canon of law is not free of exceptions. The
availability of alternative statutory or other
remedy by itself may not operate as an absolute
bar for exercise of jurisdiction by the courts. It
will normally depend upon the facts and
circumstances of a given case. The further
question that would inevitably come up for
consideration before the Court even in such cases
would be as to what extent the jurisdiction has to
be exercised.""
10. It is relevant to note that the Apex Court, in Mahanadi
Coalfields Limited v. Dhansar Engineering Company Private
Limited6after considering the position of law and the various
Supreme Court Judgments, has observed as under:
6
(1997) 3 SCC 261
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Location: Orissa High Court, Cuttack
Date: 19-Aug-2023 14:34:48
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"Similarly, it is not necessary for us to burden
this judgment with the decisions relied on by the
respondents, to contend that existence of
alternative remedy is no bar to entertain a Writ
Petition under Article 226 of the Constitution of
India, as held in the cases of Popcorn
Entertainment v. City Development Corporation,
(2007) 9 SCC 593, Harbanslal Sahnia v. Indian
Oil Corporation Ltd., (2003) 2 SCC 107, Union
of India v. Tantia Construction Pvt. Ltd., (2011)
5 SCC 697, M.P. State Agro Industries
Development Corpn. v. Jahan Khan, (2007) 10
SCC 88 and Whirpool Corporation v. Registrar
of Trade Marks, Mumbai, (1998) 8 SCC 1. For,
we have already examined the merits of the
controversy and more so granted liberty to the
respondents to make representation to the
appellants on the question of justness of the
demand towards penalty or the quantum thereof.
It will be open to the respondents to pursue
remedy in that behalf, as may be permissible in
law. We are not expressing any opinion one way
or the other on the issue of penalty amount. All
questions in that behalf are left open."
11. In L. Chandra Kumar v. Union of India7, it has been
categorically declared by the Supreme Court that the power of
judicial review under Articles 226, 227, and 32 are part of the
basic structure of our constitution and the same are inviolable.
(1998) 8 SCC 1
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Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 19-Aug-2023 14:34:48
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It may be pertinent and useful to extract and refer to the
following paragraphs of L. Chandra Kumar (supra):
"78......... We, therefore, hold that the power of
judicial review over legislative action vested in
the High Courts under Article 226 and in this
Court under Article 32 of the Constitution is an
integral and essential feature of the Constitution,
constituting part of its basic structure.
Ordinarily, therefore, the power of High Courts
and the Supreme Court to test the constitutional
validity of legislations can never be ousted or
excluded.
79. We also hold that the power vested in the
High Courts to exercise judicial superintendence
over the decisions of all courts and tribunals
within their respective jurisdictions is also part
of the basic structure of the Constitution. This is
because a situation where the High Courts are
divested of all other judicial functions apart from
that of constitutional interpretation, is equally to
be avoided."
12. It can further be noted that in terms of the above ratio in L.
Chandra Kumar (supra), High Courts have been entertaining
petitions under Article 226 and 227 of the Constitution against
orders of the NGT. While exercising such jurisdiction, the
Courts necessarily exercise due discretion on whether to
entertain or to reject the petition, as per the test broadly laid
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Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 19-Aug-2023 14:34:48
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down in Whirlpool Corpn. v. Registrar of Trade Marks,
Mumbai8;
"14. The power to issue prerogative writs under
Article 226 of the Constitution is plenary in
nature and is not limited by any other provision
of the Constitution. This power can be exercised
by the High Court not only for issuing writs in
the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari for the
enforcement of any of the Fundamental Rights
contained in Part III of the Constitution but also
for "any other purpose".
15. Under Article 226 of the Constitution, the
High Court, having regard to the facts of the
case, has a discretion to entertain or not to
entertain a writ petition. But the High Court has
imposed upon itself certain restrictions one of
which is that if an effective and efficacious
remedy is available, the High Court would not
normally exercise its jurisdiction. But the
alternative remedy has been consistently held by
this Court not to operate as a bar in at least three
contingencies, namely, where the writ petition
has been filed for the enforcement of any of the
Fundamental Rights or where there has been a
violation of the principle of natural justice or
where the order or proceedings are wholly
without jurisdiction or the vires of an Act is
challenged. There is a plethora of case-law on this
point but to cut down this circle of forensic
whirlpool, we would rely on some old decisions of
(1948) 1 K.B. 223
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Location: Orissa High Court, Cuttack
Date: 19-Aug-2023 14:34:48
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the evolutionary era of the constitutional law as
they still hold the field."
13. 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.
14. On this aspect it also needs to be observed as laid down by
the Supreme Court in Madhya Pradesh High Court
Advocates Bar Association and Another v. Union of India
and Another (Supra) even when a direct appeal to the
Supreme Court is provided by a statute against the decision of
a tribunal, the remedy under Article 226 or 227 before the
High Court remains unquelled. Moreover, the Appeal under
Section 22 of the NGT Act, is limited to the grounds under
Section 100 of the CPC and therefore the Supreme Court of
India does not function as a first appellate court. However,
under Article 226 or 227, remedies on issues of jurisdiction
and also under the principles set out in Associated Provincial
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Location: Orissa High Court, Cuttack
Date: 19-Aug-2023 14:34:48
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Picture Houses Ltd. v. Wednesbury Corporation and
Whirpool Corpn (Supra) are available for an aggrieved party.
15. Section 22 of the NGT Act provides for an appeal and Section
29 bars the jurisdiction of the civil Courts-- not that of the
Constitutional Courts. Thus, no provision in the NGT Act bars
the High Court's jurisdiction either under Article 226 or
Article 227 of the Constitution vis-a-vis the Tribunal's orders.
16. So, essentially, the question boils down to one singular aspect:
Has the petitioner established any ground that compels this
Court to exercise its extraordinarily equitable or supervisory
jurisdiction over the Tribunal's decision despite the
alternative appellate remedy.
17. The recognized rules of exception to the alternative remedy
have already been laid out time and again. Those exceptions
are briefly summarized as under:
(i) when the petitioner's fundamental rights are
affected;
(ii) when the principles of natural justice are violated;
or
(iii) when the impugned proceedings are ultra vires.
The rule excluding the writ jurisdiction on the grounds of an
alternative remedy is a rule of discretion and not one of
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Location: Orissa High Court, Cuttack
Date: 19-Aug-2023 14:34:48
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compulsion. There is no doubt that the power of judicial
review as conferred on the High Court under Articles 226
and 227 of the Constitution is sacrosanct and remains
unaffected despite an appeal being provided under Section
22 of the NGT Act. The Court however would be loath to
interfere except in extremely exceptional cases. The law in
this regard is well settled.
18. Adverting to the above principles of law and considering the
scope and ambit of Section 22 of NGT Act, this courtis not
convinced that this is an extraordinary case where indulgence
can be granted to the petitioner by entertaining this petition
under Article 226 of the Constitution.
19. However, this Court grants liberty to the petitioner to
approach the Appellate Court in this Case to pursue the
appropriate remedy to challenge the order dated 18.04.2023
passed by the learned National Green Tribunal Eastern Zone
Bench, Kolkata in Original Application No.83 of
2022/EZ(I.A.No.189/2022/EZ). Merely because the petitioner
claims that filing an Appeal before the Supreme Court is
tough for him and expensive, they are not extraordinary
circumstances under which this Court will exercise its
discretionary powers. Even otherwise such a contention
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Location: Orissa High Court, Cuttack
Date: 19-Aug-2023 14:34:48
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doesn't hold water given the fact that e-filing initiatives and
video conferencing facilities are well established procedures
which litigants across the country can avail of.
20. Accordingly, the Writ Petition stands disposed of.
( Dr. S.K. Panigrahi)
Judge
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Location: Orissa High Court, Cuttack
Date: 19-Aug-2023 14:34:48
