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TMI Blog2015 (10) TMI 2843X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner trust was established by a registered trust-deed dated 28.9.1995 with following objects:-- "A. To establish and maintain the CETP for control of water pollution, treatment of industrial waste and discharge etc. B. Without derogating from the generality of the forgoing objects:-- (i) to establish, take over and maintain any CETP, to close down any such CETP and to do all acts, and things necessary for conductive to the promotion of environmental improvements generally; (ii) to establish research laboratories, institutions and grant aids to the institutions engaged in the research work of pollution control of any nature; (iii) assist institutions engaged in pollution control by grants from income of corpus and in any other ways; (iv) to enter into any agreements or arrangements with Government, Local Authority Institution, Body of individuals as may appear conducive to the objects of the said trust and to carry out exercise and comply with such agreements and arrangements; (v) to print, publish, distribute or support any publications, periodic or wrote for the furtherance of the objects of the said trust; (vi) to organise and support conference, seminar and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question of payment of compensation by the units on the principle of polluter pays shall be determined." 4. As a result of these directions, the Government of Rajasthan conducted a study to assess damage caused to the environment and health of the public on account of pollution created by the Textile units. The body that conducted the study after noticing huge damage to the soil, underground water, agriculture and health of the public at large, recommended for regulating industrial activities, for establishing CETP for remediation and decontamination of ground water and soil. 5. The petitioner, a practicing advocate of this Court and permanent resident of Jasol, a small town near Balotra, preferred a petition for writ (DB Civil Writ Petition No. 2844/2011) before this Court on 30.3.2011, seeking intervention of this Court against imputed continuous discharge of toxic industrial effluent by the Textile (Dyeing) industries causing permanent damage to the water level, environment, ecology and health of the inhabitants of Bithuja, Balotra and Jasol in District Barmer. It was contended that such effluent though supposedly treated by CETP, is not divested of toxic contents and, thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rol Board were also asked to examine their resources to cater the industries need and its sustainability. The Tribunal also observed that the State or the State Pollution Control Board shall not promote any further industrial activity that may add to the existing industrial load, which the concept plan of the CETPs conceives to handle. While adjourning the original application for 14.5.2015 the Central Pollution Control Board and the Rajasthan State Pollution Control Board were directed to constitute an inspection team comprising of their scientists to visit each of the respondent units in the industrial clusters Balotra, Bithuja and Jasol to verify the following:-- "1. Total capacity of each plant/unit in the industrial cluster; 2. Source and consumption level of water; 3. Capacity of CETPs and its functioning level and its adequacy; 4. Quality of the effluent entering the CETPs (Inlet) and coming out of the CETPs (Outlet); 5. Means and modes of disposal of effluent complying out of CETPs; 6. Whether the treated effluent is used for plantation or not and the present status of the concerned land." 8. In pursuance to the order aforesaid the joint committee of the Rajast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporation observed and ordered as under:-- "A fact, however, remains that the CETP has to have reverse osmosis plant of adequate capacity so as to come to the level of zero liquid discharge as expected in the consent to operate dated 11.10.2013. We would have, therefore, to wait till further developments regarding the compliance of the other directions regarding extraction of ground water, registration of the individual units under Hazardous Waster Management Rules and lying of the conduit pipeline including fixation of electro-magnetic flow meters at the points of extraction of ground water and at the points of delivery of the effluents through the pipeline. This will ensure to the great extent the further damage to the environment as well as the quantification of such damage as a result of certain things being not in place. Learned Counsel appearing on behalf of the CETP Respondent No. 8 and 9 submitted that they are prepared to commence with the work of installation of R.O.'s at their cost subject to receiving of sanctions to the grant of financial aid from State and Central Governments. In this context, statement is made by the Learned Counsel appearing on behalf of the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in (2015) 6 SCC 412, it is stated that a plea of limitation concerns the jurisdiction of Court which tries the proceedings, since a finding on that may oust jurisdiction of the Court. The Tribunal, thus, committed a jurisdictional error in examining merits of the case without deciding the issue of limitation. By relying upon the same judgment it is further submitted that this Court is having ample authority to entertain this petition for writ despite availability of the alternative remedy of appeal before Hon'ble the Supreme Court of India as per Section 22 of the National Green Tribunal Act, 2010. According to learned counsel availability of alternative remedy is not absolute bar to invoke writ jurisdiction, if the authority has acted wholly without jurisdiction. In the instant case, as per learned counsel, the National Green Tribunal acted beyond the jurisdiction wasted with it, hence this Court should not clip its wings just to adhere a rule of policy. It is asserted that learned Tribunal while exceeding its jurisdiction stopped the complete operation of the textile dyeing and processing units and that is against the concept of sustainable development. While referring t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts by detailing huge loss to the nature due to uncontrolled, unregulated generation of pollution by the industrial units. By referring several documents Shri Digvijay Singh emphasised that the pollution existing has spoiled valuable soil of the area and also contaminated underground water to the extent that same has gone toxic. Being resident of the area in question he also brought in knowledge of the Court the huge loss caused to all living beings in the area because of the effluents discharge by the industrial units. With all seriousness and sensitivity Shri Digvijay Singh made his best efforts to establish that an industry i.e. consuming maximum water is in operation in Thar Desert, which is otherwise facing huge scarcity of water. The industry is also spoiling the water quality which is otherwise required to sustain all living beings including human beings. The writ petition in words of the petitioner is a sharp blow to the right to live, the most valuable fundamental right enshrined under Article 21 of the Constitution just by taking ill-founded shield of the rights protected under Article 19 of the Constitution of India. 17. While meeting with the averments contained in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjective conditions, Shri Digvijay Singh contested the writ petition on the count of availability of alternative remedy under Section 22 of the Act of 2010. It is submitted that even for the sake of argument it is accepted that some jurisdictional error has been committed by the Tribunal, then too extraordinary jurisdiction should not be invoked in favour of the petitioner who is having no locus to challenge the orders impugned. It is stated that as per the trust deed an enormous burden is on petitioner trust to protect the environment and ecology, but it is coming forward to protect the units which are bent upon to assault the nature grievously. It is further submitted that the legislature under the Act of 2010 provided a regular statutory remedy to an aggrieved person by order of National Green Tribunal and that too before the Apex judicial forum of the country and that indicates importance of the environmental issues and the slow pace of interference by any judicial forum except the Apex Court of the country with the orders passed by a Green Tribunal. Shri Digvijay Singh quite fairly and frankly stated that no water tight compartment can be made in relation to the rule of exhaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subjects. The remedy given under Article 226 being discretionary is subject to several checks. The checks mostly are self-imposed and as a rule of policy with a view that extraordinary remedy should always be exercised in extraordinary circumstances only. The remedy given must not be treated at par or alike other statutory remedies. A prominent self-imposed restriction in exercise the discretion given under Article 226 of the Constitution is the principle of exhausting all other statutory remedies before approaching writ court. It is a rule of convenience and discretion and does not oust the jurisdiction of a writ court, but indicates a caution in exercising extraordinary constitutional authority. The deviation from this principle is permissible if the relief is sought with well founded allegation of violation of fundamental rights, if the right has been or being threatened to be infringed by a law which itself is ultra-vires, if there is a complete lack of jurisdiction in the officer or the authority issuing impugned order or action, if there is flagrant violation of principles of natural justice, if the prevention of public injury and vindication of public justice requires the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtiorari can be issued even if a remedy of appeal/revision is available on arriving at a conclusion that an inferior court or Tribunal of first instance has committed an error so patent that may not be cured or obliterated by adopting the other statutory remedy. The doctrine of availability of alternative remedy may also be ignored, if the inferior court or Tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings of a writ in the manner that that is contrary to the rules of natural justice. 24. The petitioner herein seeks a deviation from the doctrine of exhausting all other remedies before approaching writ court with allegation that the tribunal under the orders impugned exceeded jurisdiction vested with it as the original applicant is barred by limitation and further the issue agitated in this regard has yet not been decided. 25. True it is, an objection about filing of the original application within the limitation prescribed is pending consideration before the Tribunal and in light of the law laid down by Hon'ble Supreme Court in Foreshore Cooperative Housing Society Limited v. Praveen D. Desa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles of natural justice. The Tribunal is headed by the persons having deep knowledge of law and also having expertise in relation to the environmental issues. The allegation of the petitioner while questioning correctness of the orders impugned is based on violation of Article 19 of the Constitution of India, but in our opinion i.e. yet to be adjudicated and that, in the case in hand, is in confrontation with the fundamental right enshrined under Article 21 of the Constitution of India as claimed by the original applicant. The remedy given by the legislature to the Supreme Court as per Section 22 of the Act of 2010 is with a caution that even appeal may be filed on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 and that indicates intention of the legislature for minimal interference with the orders passed by the Tribunal. The remedy given under Section 22 of the Act of 2010 by no stretch of imagination can be termed and treated as not efficacious to meet the injury, if any caused to the petitioner, and if that involves any ground as required to invoke Section 100 of the Code of Civil Procedure. 27. The most important aspect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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