Sumanta Swain And Others vs State Of Odisha And Others .... Opposite ...
2026 Latest Caselaw 999 Ori

Orissa High Court

Sumanta Swain And Others vs State Of Odisha And Others .... Opposite ... on 5 February, 2026

Author: Murahari Sri Raman

Bench: Murahari Sri Raman

      IN THE HIGH COURT OF ORISSA AT CUTTACK
                         W.P.(C) No. 28208 of 2025

   Sumanta Swain and others                           ....                Petitioners

                                       -Versus-
   State of Odisha and others                         ....         Opposite Parties


  Advocates appeared in this case:
      For Petitioners                : Mr. Pawan Upadhyay, Advocate


      For Opposite Parties           : Smt. Suman Pattanayak,
                                       Mr. Debashis Tripathy,
                                       Additional Government Advocate,
                                       Mr. P. K. Parhi, DSGI
                                       along with Mr. Millon Kumar, CGC


                          CORAM:
                HON' BLE THE CHIEF JUSTICE
                            AND
          HON'BLE MR. JUSTICE MURAHARI SRI RAMAN

                               JUDGMENT

---------------------------------------------------------------------------------

Date of Judgment : 5th February, 2026

--------------------------------------------------------------------------------- HARISH TANDON, CJ.

1. The question was raised before the counsel on the first

motion as to whether the relief claimed in the instant writ petition

can also be claimed before the specialized Tribunal i.e. National

Green Tribunal (for short, 'NGT') and, therefore, why the writ

Court should not relegate the parties to approach the said Tribunal.

In other words, the Bench was of the view that once the

specialized Tribunal is constituted to deal with the issues raised in

the instant writ petition, whether the litigant can bypass such

statutory forum and approach the High Court as a rule of

convenience.

2. We are not unmindful of the settled proposition of law that

the power to issue writs under Article 226 of the Constitution of

India and power of superintendence exercised by the High Court

over the subordinate courts and Tribunals are inviolable and

cannot be abridged or whittled down through a legislative exercise

as the same is a basic structure of the Constitution, yet at times, the

writ Court may refuse to exercise such powers not as a matter of

compulsion, but of discretion. There is no absolute bar in

entertaining the writ petitions under Article 226 of the Constitution

of India despite an alternative remedy available to the litigant, but

the writ Court may refuse to entertain such writ petitions and

relegate the parties to exhaust the statutory remedy, which is

appropriate and effective by using its discretion.

3. The point was raised, at the threshold, in the instant writ

petition as to why the litigant should not be directed to exhaust

such statutory remedy upon noticing the facts narrated in the writ

petition and the reliefs claimed therein. The important issues raised

in the instant writ petition pertain to unregulated dumping of fly

ash during the construction of the National Highway No.49 (for

short, 'NH-49') causing pollution in the environment and also

causing an extensive damage to the crops of the people in the

vicinity. Apart from the same, such dumping of fly ash in an

indiscriminate manner causes a contamination of the ponds and the

ground water, which are essential for irrigation and the

pisciculture, causing death of fish and affects the water body being

the source for irrigation.

4. The concern is shown when the Ministry of Road

Transport and Highways ensued the construction of NH-49 and the

authorities used fly ash by dumping in open air without taking any

safeguard by covering the same with morrum or soil and at times,

during the rainy season, it washed away to engulf farmlands and

ponds and even the village roads.

5. We have no hesitation not even inkling of doubt that the

concern shown in the writ petition is of a significant importance,

but the entertainability of the writ petition was raised because of

setting up of the specialized forum established under the National

Green Tribunal Act, 2010 (for short, 'NGT Act').

6. This Court was reminded of the decision rendered by the

apex Court in Madhya Pradesh High Court Advocates Bar

Association v. Union of India, reported in 2022 SCC OnLine SC

639; 2022 LiveLaw (SC) 495, where the writ petition was filed

under Article 32 of the Constitution of India before the apex Court

challenging the vires of the NGT Act on multiple grounds

including that it suffers from the vice of excessive delegation. The

apex Court recapitulated the genesis of the said Act and observed

that the precursor to the NGT Act was the 186th Report of the Law

Commission of India primarily aimed to establish the specialized

environmental courts with qualified judges and technical experts to

deal with the environmental issues. In course of the hearing,

another issue was raised whether the said Act ousts the jurisdiction

of the High Courts under Article 226 or 227 of the Constitution by

virtue of Sections 14 and 22 of the said Act. The apex Court

reminded itself to the 7-Judge Bench decision rendered in L.

Chandra Kumar v. Union of India, reported in 1997 (3) SCC 261

where the challenge was made to the establishment of the

Administrative Tribunal, which was perceived to have undermined

the authority of the writ Courts wherein it was held that the power

of judicial review over legislative action vested in the High Courts

under Article 226 and the Supreme Court under Article 32 of the

Constitution, is an integral and essential feature of the

Constitution, constituting a part of its basic structure. It was also

held that the power vested in the High Courts to exercise judicial

superintendence over the decisions of all Courts and Tribunals

within their respective jurisdiction is also a part of the basic

structure of the Constitution. Ultimately, it was held that the High

Courts may entertain the writ petitions under Article 226 and 227

of the Constitution against the order of the specialized Tribunal

with the caveat that such exercise must be done with due

discretion whether to entertain or relegate the parties to the forum.

The Bench also took note of the broad test laid down in Whirlpool

Corporation v. Registrar of Trade Marks, Mumbai reported in

(1998) 8 SCC 1. Noticing the aforementioned judgments, the

Bench held that the provisions contained under the NGT Act

neither impliedly nor explicitly oust the jurisdiction of the High

Courts under Articles 226 and 227 of the Constitution, which

remained unaffected and, therefore, no absolute ouster can be

perceived and the parties may approach the High Court against the

order of the NGT as the provision of appeal under Section 22 of

the said Act is limited to the grounds akin to Section 100 of the

CPC in the following:

"31. The petitioners have also pleaded that instead of appeal to the Supreme Court under Section 22 from the orders passed by the NGT, an appeal mechanism as a matter of right should also be provided before the concerned High Courts. According to them, appeal to the Supreme Court is inadequate and unaffordable and therefore inaccessible. On this aspect it needs to be observed that even when a direct appeal to the Supreme Court is provided by a statute (Electricity Act, 2003; Telecom Regulatory Authority of India Act, 1997) against the decision of a tribunal (Armed Forces Tribunal under the Armed Forces Tribunal Act, 2007), the remedy under Article 226 or 227 before the High Court remains unextinguished. Moreover, the Appeal under Section 22 of the NGT Act, is limited to the grounds under Section 100 of the CPC and the Supreme Court does not function as a regular first appellate Court. However, under Article 226 or 227, remedies on issues of jurisdiction and also under the principles set out in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation ([1948] 1 kb 223), are available for an aggrieved party. Subject to discretion being exercised, the affected litigants can move High Court under Article 226 or 227 and in such cases, a SLP under Article 136 of the Constitution could also be maintained to the Supreme Court from the High Court's verdict."

7. Ultimately, it was held as follows:

"45. In consequence of the above analysis, our conclusions are, A. The National Green Tribunal under Section 14 & 22 of the NGT Act does not oust the High Court's jurisdiction under Article 226 & 227 as the same is a part of the basic structure of the Constitution.

B. The remedy of direct appeal to the Supreme Court under Section 22 of the NGT Act is intra vires the Constitution of India.

C. Section 3 of the NGT Act is not a case of excessive delegation of power to the Central Government.

D. The seat of the NGT benches can be located as per exigencies and it is not necessary to locate them in every State. The prayer for relocating the Bhopal NGT to Jabalpur is unmerited and is rejected."

8. The petitioners rely on a judgment of the apex Court in

Tamil Nadu Pollution Control Board v. Sterlite Industries

(India) Ltd., reported in 2019 (19) SCC 479, in support of the

contention that the High Court may entertain the writ petition

concerning the issues relating to violation of several provisions

contained under the statute relating to 'air' and 'water'. In the said

writ petition, the appeal was filed by the Pollution Control Board

against the order passed by the National Green Tribunal and a plea

of demur was taken whether such appeal is maintainable. It can be

reasonably deciphered from the facts narrated in the said case that

the respondent therein was operating a copper smelter plant at the

industrial complex after receiving a No Objection Certificate from

the Pollution Control Board for production of blister copper and

sulphuric acid. The environmental clearance to the project was

also obtained from the Ministry of Environment, Forest and

Climate Change and subsequently the consent was also granted by

the Pollution Control Board under Air (Prevention and Control of

Pollution) Act, 1981 and Water (Prevention and Control of

Pollution) Act, 1974. Subsequently, the environmental clearances,

which were granted to the said respondent, were challenged before

the Madras High Court under Article 226 of the Constitution,

which was eventually allowed by quashing the environmental

clearances with further direction to close down the plant. Apropos

the said, a show-cause notice for closure of the unit was issued,

which was challenged before the NGT, who stayed the said order.

Ultimately, the NGT set aside the order passed by the Pollution

Control Board. The appeal was filed before the Supreme Court and

a plea of maintainability thereof was raised. The apex Court was

considering the several provisions of the NGT Act including

Section 31 and 31B of the NGT Act concerning the exercise of the

appellate jurisdiction and in the backdrop of the above, it was held:

"43. xxx xxx xxx 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 [BSNL v. TRAI, (2014) 3 SCC 222] , 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 17-7-2014 in Wilfred J. v. Ministry of Environment & Forests [Wilfred J. v. Ministry of Environment & Forests, 2014 SCC OnLine NGT 6860] 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.

44. Shri Sundaram then argued that, in any case, this order is an order made by the State Government against the TNPCB, and is therefore, a direction to the TNPCB and not a direction to his client. If this were so, and the order had no effect on his client, there would have been no necessity to file an appeal before the NGT against such order. We have seen, however, that this order has been challenged on merits by the respondent before the NGT. To then say that this order which is challenged would be defended on certain grounds, as a result of which, the NGT then gets vested with the jurisdiction to decide the same, is again to put the cart before the horse. It is clear that no appeal is provided against orders made under Section 18 of the Water Act, and the attempt to bring the NGT in by the backdoor, as it were, would, therefore,

have to be rejected. Also, to argue that as against a writ court acting under Article 226 of the Constitution of India, the NGT is an expert body set up only to deal with environmental matters, again does not answer the specific issue before this Court. As we have held earlier, an appeal being a creature of statute, an order passed under Section 18 of the Water Act is either appealable or it is not. If it is not, no general argument as to the NGT being an expert body set up to hear environmental matters can be of any help.

45. Equally, so far as the order dated 8-8-2013 [Sterlite Industries (India) Ltd. v. T.N. Pollution Control Board, 2013 SCC OnLine NGT 68] is concerned, we have seen how the NGT stated that the doctrine of necessity would take over if an appellate authority under the Act is not properly constituted so that no appeal can then be effectively preferred. This, again, is an argument that cannot be countenanced. If an appellate authority is either not yet constituted, or not properly constituted, a leapfrog appeal to the NGT cannot be countenanced. As has been held by us supra, the NGT is only conferred appellate jurisdiction from an order passed in exercise of first appeal. Where there is no such order, the NGT has no jurisdiction."

9. It is no longer res integra that even if a statutory remedy is

provided to the person, the approach to the High Court under

Articles 226 and 227 of the Constitution of India is not taken

away. The power to issue writs under Article 226 of the

Constitution cannot be taken away nor such forum can be ousted

in exercise of the legislative powers as it is an integral part of a

basic structure even the power of superintendence over the courts

and the Tribunals provided under Article 227 of the Constitution

of India is imbibed into such basic structure and, therefore, cannot

be abridged or taken away through a legislative fiat. There is no

absolute inhibition in the writ Courts to exercise such powers but

noticing the remedy provided under the statute, it is discretion of

the writ Court whether to entertain or to relegate the parties to

exhaust such statutory remedy. The broad principles enshrined in

the decision rendered by the apex Court in Whirlpool Corporation

(supra) has to be borne in mind.

10. The Courts have imposed self-restrained in entertaining the

writ petition if the grievance can be addressed before the

specialized fora constituted under the valid enactment. It is, thus, a

rule of discretion and not of compulsion. In the instant case, the

issue relating to the pollution inflicted in 'air' and 'water' by

indiscriminate use of the fly ash in making the road (NH-49), can

be conveniently addressed by the National Green Tribunal and,

therefore, we feel it prudent that the petitioners should be relegated

to such statutory forum. We thus refuse to exercise the discretion

in entertaining the instant writ petition and relegate the petitioners

to the forum as provided under the NGT Act. It is open to the

petitioners to ventilate the grievance so raised in the writ petition

and the reliefs claimed herein and if such approach is made, we

expect that the NGT will take into account the serious issues raised

in the instant writ petition and pass appropriate directions as

warranted.

11. The writ petition is, thus, disposed of.

(Harish Tandon) Chief Justice

(M.S. Raman) Judge

M. Panda

Location: High Court of Orissa, Cuttack