Jugal Kishore Mishra vs State Of Odisha And Others
2023 Latest Caselaw 12461 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK
                               W.A. No. 2282 of 2023

Jugal Kishore Mishra                 .....                                 Appellant
                                           Mr. Subir Palit, Sr. Advocate along with
                                                       Mr. Pratik Dash, Advocate
                                     Vs.
State of Odisha and others           .....                              Respondents
                                                              Mr. A.R. Dash, AGA
              CORAM:
                 ACTING CHIEF JUSTICE DR. B.R. SARANGI
                 MR. JUSTICE MURAHARI SRI RAMAN

                                            ORDER

12.10.2023

Order No. W.A. No. 2282 of 2023 & I.A. No. 6187 of 2023

01. This matter is taken up through hybrid mode.

2. Heard Mr. Subir Palit, learned Senior Advocate appearing along with Mr. Pratik Dash, learned counsel for the appellant and Mr. A.R. Dash, learned Additional Government Advocate appearing for the State.

3. The appellant has filed this writ appeal assailing the order dated 16.08.2023 passed in W.P.(C) No. 13692 of 2023, by which learned Single Judge, while disposing of the writ petition, permitted the appellant to approach the Appellate Court to pursue the appropriate remedy to challenge the order dated 18.04.2023 passed by the National Green Tribunal, Eastern Zone Bench, Kolkata in Original Application No. 83/2022/EZ (I.A. No. 189/2022/EZ).

4. Mr. S. Palit, learned Senior Advocate appearing for the appellant vehemently contended that the order so passed by the

learned Single Judge is an outcome of non-application of mind. He has referred to the order dated 11.05.2023 passed by the very same learned Single Judge, whereby he being prima facie convinced with regard to non-compliance of the principle of natural justice, entertained the writ petition and granted interim order. But the same has not been taken note of in the final order of disposal on 16.08.2023. According to him, though on 16.08.2023 learned counsel appearing for the State asked time to file counter affidavit, without granting time, the matter was closed and the order was passed, which is contrary to the earlier order passed on 11.05.2023.

4.1 He further contended that there is no dispute that against the order passed by the National Green Tribunal, the person aggrieved can move the apex Court, but that itself is not conclusive one, in view of the judgment passed by the apex Court in the case of Madhya Pradesh High Court Bar Association v. Union of India, AIR 2022 SC 2713. In the said decision, among other various decisions, the decision rendered by the apex Court in the case of L. Chandra Kumar vs. Union of India, 1997 (3) SCC 261 and Whirlpool Corpn. Vs. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1 were also referred. It has also been observed in Madhya Pradesh High Court Bar Association (supra) that apart from the clear enunciation on legal position to the effect that the NGT is within the purview of Articles 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. Similarly, it has also been held that 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.

4.2. Learned Senior Counsel appearing for appellant contended that the appellant's case comes within the 2nd category, i.e. there is violation of the principles of natural justice. Therefore, the writ court has the jurisdiction to entertain such writ petition. Even though National Green Tribunal Act, 2010 specifies that appeal lies before the Supreme Court, but it is a fact that the appellant had not been made a party before the NGT and the order has been passed behind his back. Thereby, there is non-compliance of principle of natural justice. Thus, this Court has jurisdiction to entertain the writ petition and rightly the learned Single Judge, while entertaining the writ petition passed the interim order. But, subsequently disposed of on a 3rd ground, which was not urged by learned counsel for the appellant nor the same was the case of the appellant before the learned Single Judge. Therefore, the finding of the learned Single Judge in Paragraph-19 of the impugned judgment cannot be sustained and the same is liable to be quashed.

5. Mr. A.R. Dash, learned Additional Government Advocate contended that since the appellant alleges non-compliance of

principles of natural justice and the learned Single Judge has passed the impugned order otherwise, therefore, the matter may be examined by this Court.

6. In view of the above, issue notice to the opposite parties.

7. Since Mr. A.R. Dash, learned Additional Government Advocate accepts notice on behalf of respondents 1 to 10 and 15, adequate number of extra copies of the brief be served on him within three days.

8. Requisites for issuance of notice to respondents 11 to 14 and 16 to 20 by speed post be filed within three days. The notice be issued fixing short returnable date.

9. As an interim measure, there shall be stay operation of the order dated 18.04.2023 passed by the National Green Tribunal, Eastern Zone Bench, Kolkata in O.A. No. 83/2022/EZ (I.A. No.189/2022/EZ) under Annexure-1 as well as the order dated 16.08.2023 passed by the learned Single Judge in W.P.(C) No. 13692 of 2023 under Annexure-6 till 09.11.2023.

10. It is made clear that if extra copies are not served and the requisites are not filed, as directed above, the interim order shall stand vacated automatically.

(DR. B.R. SARANGI) ACTING CHIEF JUSTICE Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Arun Reason: Authentication Location: High Court of Orissa Date: 13-Oct-2023 16:35:25 (M.S. RAMAN) JUDGE