Vijayan P.A. v. Kerala State Pollution Control Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941** ## **WP(C).No.23317 OF 2019(L)** ## **PETITIONER:** **VIJAYAN.P.A,AGED 44 YEARS, PROPRIETOR, VIJAYA INDUSTRIES, PUTHEN VEEDU, KUREEKKAD P.O.CHOTTANIKKARA, ERNAKULAM DISTRICT, PIN-682 305.** **BY ADV. SRI.BABU JOSEPH KURUVATHAZHA** ## **RESPONDENTS:** - **1 KERALA STATE POLLUTION CONTROL BOARD PLAMOOD, PATTOM P.O. THIURUVANANTHAPURAM-695 004, REPRESENTED BY ITS MEMBER SECRETARY.** - **2 THE CHAIRMAN, KERALA STATE POLLUTION CONTROL BOARD, PLAMOOD, PATTOM P.O.THIRUVANANTHAPURAM-695 004,** - **3 THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, REGIONAL OFFICE, GANDHI NAGAR, KADAVANTHRA, KOCHI-682 020.** - **4 THE CHOTTAINIKKARA GRAMA PANCHAYAT, CHOTTAINIKKARA P.O.ERNAKULAM DISTRICT, PIN-682 312, REPRESENTED BY ITS SECRETARY.** - **5 THE ZONAL OFFICER, CENTRAL POLLUTION CONTROL BOARD, NIZARGA BHAVAN, THIMMAIAH ROAD, 7TH D MAIN ROAD, SHIVA NAGAR, BENGALURU, PIN-560 079.** - **6 KUREEKKAD TOWN RESIDENTS ASSOCIATION, REG NO ER/70/10, KUREEKKAD, THIURVANKULAM, ERNAKULAM DISTRICT-682 305, REP. BY ITS SECRETARY.** **WP(C).No.23317 OF 2019(L)** **2** - **7 DR. AJIT HARIDAS,CHAIRMAN, KERALA STATE POLLUTION CONTROL BOARD, PLAMOOD, PATTOM P.O.THIURUVANANTHAPURAM-695 004,** - **8 SMT.S.SREEKALA,MEMBER SECRETARY, KERALA STATE POLLUTION CONTROL BOARD, PLAMOOD, PATTOM P.O.THIURUVANANTHAPURAM-695 004,** ## **SRI T. NAVEEN, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.23317 OF 2019(L)** **3** ## **JUDGMENT** The petitioner, who is stated to be the proprietor of an ornaments manufacturing unit by name 'Vijaya Industries' at Kureekkad in Chottanikkara, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 communication dated 30.05.2019 of the 2[nd] respondent, Ext.P7 order dated 14.06.2019 of the 3[rd] respondent rejecting the application made by the petitioner for consent to operate and Ext.P10 order of closure dated 28.06.2019 issued by the 3[rd] respondent. The petitioner has also sought for a writ of mandamus commanding respondents 1 to 3 not to interfere with the smooth functioning of the aforesaid unit, until such units are brought under the consent purview of the 1[st] respondent Pollution Control Board; a writ of mandamus commanding respondents 1 and 2 to disburse a lumpsum amount of Rs.10 lakhs to the petitioner, to mitigate various loss and sufferings suffered by him and his employees, in pursuance to Ext.P6 erroneous, illegal and arbitrary order issued by the 7[th] respondent, in his capacity as the Chairman of the 1[st] respondent Kerala State Pollution Control Board and to **WP(C).No.23317 OF 2019(L)** ## **4** recover the said amount from the personal asset and properties of the 7[th] respondent; and a writ of mandamus commanding the 5[th] respondent to consider and dispose of Ext.P17 representation dated 19.07.2019, after collecting the samples of water and soil from the premises of the petitioner's enterprise as well as from the neighbouring wells and properties, with notice to the 1[st] respondent as well as the petitioner, by following the procedure as contemplated under Section 6 of the Environment (Protection) Act, 1986 and Rule 11 of the Environment (Protection) Rules, 1986, forthwith. 2. On 29.08.2019, when this writ petition came up for admission, the learned Standing Counsel for the Pollution Control Board sought time to get instructions. The petitioner was directed to place on record a copy of the judgment of this Court dated 09.08.2019 in W.P.(C).No.14761 of 2019, as an additional document. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the Pollution Control Board. 4. The main relief sought for in this writ petition is a writ of certiorari to quash Ext.P6 order dated 30.05.2019 **WP(C).No.23317 OF 2019(L)** **5** issued by the 2[nd] respondent, Ext.P7 order dated 14.06.2019 and Ext.P10 order dated 28.06.2019 issued by the 3[rd] respondent. By the judgment dated 09.08.2019, W.P. (C).No.14761 of 2019 filed by the petitioner was permitted to be withdrawn, without prejudice to the right of the petitioner to challenge Ext.P7 order dated 14.06.2019 of the 3[rd] respondent Environmental Engineer (Ext.R3(t) order in that writ petition), in appropriate proceedings. Paragraphs 11 to 13 and also the last paragraph of the said judgment read thus; “11. The learned Standing Counsel for Pollution Control Board, on instructions from the 2[nd] respondent Environmental Engineer, would submit that the petitioner has already closed down the gold ornaments manufacturing unit by name Vijaya Industries in building No.13/298 of Chottanikkara Grama Panchayat, at Kureekkad. 12. The learned counsel for the petitioner would submit that the petitioner may be permitted to withdraw this writ petition, without prejudice to his right to challenge Ext.R3(t) order dated 14.06.2019 of the 2[nd] respondent Environmental Engineer rejecting the application for consent to operate, in appropriate proceedings. 13. Having considered the submissions made by the learned counsel on both sides and the request of the **WP(C).No.23317 OF 2019(L)** **6** learned counsel for the petitioner to withdraw this writ petition, without prejudice to the right of the petitioner to challenge Ext.R3(t) order dated 14.06.2019 in appropriate proceedings, this writ petition is dismissed as withdrawn (after deprecating in strongest terms, the conduct of the petitioner in approaching this Court without necessary parties in the party array) reserving the aforesaid right of the petitioner. The petitioner shall not be entitled to run the unit in question, without obtaining consent from the Pollution Control Board and complying with other statutory requirements, applicable to such a unit.” (underline supplied) 5. By Ext.P12 order dated 03.05.2019 issued by the Secretary of the 4[th] respondent Grama Panchayat, the trade licence granted to the petitioner's gold ornaments manufacturing unit stands cancelled. The petitioner has filed Ext.P13 appeal before the Tribunal for Local Self Government Institutions challenging Ext.P12 order. If the petitioner is feeling aggrieved by Exts.P6, P7 and P10 orders, on the ground that those orders are erroneous, illegal or arbitrary, as contended in this writ petition, the petitioner has to challenge the same by filing appeal before the Appellate Authority under the Air (Prevention and Control of Pollution) Act, 1974 and Water (Prevention and Control of Pollution) **WP(C).No.23317 OF 2019(L)** **7** Act, 1981. When a statutory remedy is available for challenging those orders, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the ground raised in this writ petition. By judgment dated 09.08.2019, W.P.(C).No.14761 of 2019 filed by the petitioner was permitted to be withdrawn, without prejudice to the right of the petitioner to challenge Ext.P7 order dated 14.06.2019 in appropriate proceedings. 6. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** , the Apex Court held that non-entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional **WP(C).No.23317 OF 2019(L)** **8** case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. ## 7. In **Authorised Officer, State Bank of Travancore** **v. Mathew K.C. [(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary jurisdiction under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well defined exceptions as observed in **Chaabil Das Agarwal's case (supra)** , i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. After referring to the law laid down in **Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419]** and **Titaghur Paper Mills Company** **WP(C).No.23317 OF 2019(L)** **9** **Ltd. v. State of Orissa [(1983) 2 SCC 433]** the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 8. In **Thansingh Nathmal's case (supra)** a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode **WP(C).No.23317 OF 2019(L)** **10** prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. ## 9. In **Titaghur Paper Mills' case (supra)** a Three- Judge Bench of the Apex Court held that, the Orissa Sales **WP(C).No.23317 OF 2019(L)** **11** Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in **Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336]** at page 356 in the following passage: "There are three classes of cases in which a liability may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in that passage was approved by the House of Lords in **Neville v. London Express Newspaper Ltd.[1919 AC 368]** and has been reaffirmed by the Privy **WP(C).No.23317 OF 2019(L)** **12** Council in **Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Mask and Co. [AIR 1940 PC 105]** . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 10. In **Pavithran V. State of Kerala (2009 (4) KHC 4)** , a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final. 11. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the petitioner cannot challenge Exts.P6, P7 and P10 orders of respondents 2 and 3, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition (especially when W.P(C).No.14761 of 2019 filed by the petitioner was permitted to be withdrawn, without prejudice to the right of the petitioner to challenge that order in appropriate proceedings) when statutory remedy is available under the provisions of Air (Prevention and Control of Pollution) Act, **WP(C).No.23317 OF 2019(L)** **13** 1974 and Water (Prevention and Control of Pollution) Act, 1981. In the result, this writ petition filed on 26.08.2019 is dismissed for the aforesaid reason; however without prejudice to the right of the petitioner to challenge those orders before the appropriate forum, by invoking the statutory remedy. The legal and factual contentions raised by the petitioner are left open to be raised before the appellate forum, at appropriate time. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/6/9 **WP(C).No.23317 OF 2019(L)** **14** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE PHOTOCOPY OF THE CERTIFICATE REGISTRATION OF MICRO-ENTERPRISE OF THE PETITIONER** **EXHIBIT P2 TRUE COPY OF THE DIRECTION NO B- 29012/ESS (CPA)2015-16 DATED 7.3.2016 ISSUED BY THE CHAIRMAN CENTRAL POLLUTION CONTROL BOARD.** - **EXHIBIT P3 TRUE COPY OF THE NOTICE NI PCB/EKM/DO--1/CC 1/19 DATED 12.4.2019 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P4 TRUE COPY OF REPLY DATED 27.4.2019 SUBMITTED BY THE PETITIONER IN RESPONSE TO EXT.P3.** - **EXHIBIT P5 TRUE COPY OF THE PROCEEDING DATED 9.5.2019 OF THE 3RD RESPONDENT FORWARDED TO THE 2ND RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE DIRECTION DATED 30.5.2019 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO PCB/EKM/DO1/CC-01/19 DATED 14.6.2019 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P8 TRUE COPY OF THE CLOSURE INTENTION NOTICE DATED 14.6.2019 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P9 TRUE COPY OF THE REPLY DATED 19.6.2019 SUBMITTED BY THE PETITIONER IN RESPONSE TO EXT.P8** - **EXHIBIT P10 TRUE COPY OF THE ORDER NO PCB/EKM/DO1/CC-01/19 DATED 28.6.2019 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT P11 TRUE COPY OF THE D & O LICENCE NO 8/19-20 DATED 8.3.2019 VALID UP TO 31.3.2020, ISSUED BY THE 4TH RESPONDENT** **WP(C).No.23317 OF 2019(L)** **15** **EXHIBIT P12** **EXHIBIT P13** **EXHIBIT P14** **EXHIBIT P15** - **EXHIBIT P16** - **EXHIBIT P17** **TRUE COPY OF THE ORDER NO A3-1609/19 DATED 3.5.2019 ISSUED BY THE SECRETARY OF THE 4TH RESPONDENT** - **TRUE COPY OF THE APPEAL NO 319/2019 FILED BY THE PETITIONER BEFORE THE LEARNED TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM** - **TRUE COPY OF THE ORDER DATED 8.5.2019 IN IA NO 754/2019 IN APPEAL NO 319/2019 OF THE LEARNED TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANATHAPURAM** - **TRUE COPY OF THE ORDER DATED 31.5.2019 IN IA NO 754/2019 IN APPEAL NO 319/2019 OF THE LEARNED TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.** - **TRUE COPY OF THE DIRECTION DATED 7.6.2019 ISSUED BY THE 4TH RESPONDENT** **TRUE COPY OF THE REPRESENTATION DATED 19.7.2019 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT**