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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 ..... he jurisdiction of a writ court, but indicates a caution in exercising extraordinary constitutional authority. 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. In the case in hand original applicant Shri Digvijay Singh, preferred a petition for writ before a Division Bench of this Court with an allegation of violation of Article 21 of the Constitution of India, but looking to the remedy provided under the Act of 2010 the same was transferred to the tribunal. Chapter-III of the Act of 2010 relates to jurisdiction, powers and proceedings of the Tribunal. As per Section 14 of the Act of 2010, the Tribunal have original jurisdiction to hear all civil cases in which a substantial question relating to environment in respect of the acts mentioned in Schedule-I is involved. The Tribunal acts as the first fact finding authority and exclusively hears all applications raising concerned with respect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construct, operate and maintain Common Effluent Treatment Plant (CETP) in the territorial jurisdiction of Balotra Municipal Board to prevent pollution and to control the effluents, wastes and sewages discharge by Textile Processing Unit situated in the town of Balotra and the surrounding areas. With a view to accelerate the establishment of the CETP and to make provisions for proposed treatment plant, its expansion and carrying out research work relating to pollution control, it was found expedient to consolidate all activities under one administrative board, thus, the petitioner 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 polluti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial areas immediately thereafter. 4. The Trust shall make modification in the CETPs so that the omissions therefrom are compatible with the norms prescribed by the Pollution Control Board. 5. The industrial units which are discharging the industrial pollutant on the land or/and river shall be closed forthwith. 6. The State shall employ experts to assess the damage caused to the environment and health of the public by the pollution created by the units. On assessment of the damage, the concerned authority shall file a report in this Court within a period of eight weeks, whereupon the 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 peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection was raised about maintainability of the original application being barred by limitation. Learned Tribunal while keeping the issue of limitation for time being pending, decided to make efforts to find out solution for the real problem and, therefore, felt it necessary to have comment of the State Pollution Control Board on the concept document about its technical viability and the resources those could be provided to manage the CETP successfully by taking the entire effluents load of the industries at the clusters of Balotra, Bithuja and Jasol. The State Government and the State Pollution Control 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporation was laying conduit pipe line for transporting the effluents to the CETP and the work necessary was to be completed by 31.7.2015. The only question surviving was with regard to installation of the Reverse Osmosis (RO) plant as recommended. Suffice to mention that the process of RO reduces Total Dissolved Solids (TDS) level in water and bring it to the permissible limits. Learned Tribunal after examining all aspects of the matter including the details given by the Rajasthan State Pollution Control Board, Central Pollution Control Board and the Rajasthan State Industrial Development and Investment Corporation 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 extractio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards the consumption of electricity and discharge of the effluents. 12. Being aggrieved by the orders dated 19.3.2015, 15.5.2015, 9.7.2015 and 1.9.2015, this petition for writ is preferred. 13. At the threshold learned counsel appearing on behalf of the petitioner submits that the Tribunal exceeded its jurisdiction while passing the orders impugned without deciding the question as to whether the original application itself is maintainable or not being barred by limitation. By relying upon a judgment of Hon'ble Supreme Court in Foreshore Cooperative Housing Society Limited v. Praveen D. Desai Ors., reported 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wastes Management Rules. An effort is also made to impress that discharge of treated effluent of CETPs in river Luni is not going to effect adversely the water quality of ground water and for that purpose reliance is placed upon a report given by Dr. S.K. Singh, Associate Professor, Department of Civil Engineering, MBM Engineering College, Faculty of Engineering, Jai Narain Vyas University, Jodhpur. Pertinent to notice here that the report aforesaid has been obtained by Chairman of the petitioner trust from Dr. S.K. Singh. 16. Shri Digvijay Singh, the petitioner appearing in person, opposed the writ petition on several counts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, a recommendation was made to prohibit discharge into the river. It is further submitted that the Tribunal while restraining the industrial units to function, granted liberty to the CETP trust to move appropriate application before the Tribunal for granting permission to member units to run their operation as and when circumstances would permit such industrial activity to be carried out without detriment to the environment. The members of the petitioner unit, thus, can very well commence their business by carrying out all the requirements necessary to protect environment of the area concerned. 18. Beside the objective 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution confers several constitutional rights to the citizens of India. All these rights would have been of no meaning, if adequate safeguard would have not been given to enforce and protect such rights. Under Article 32 of the Constitution of India, remedy to ensure and protect fundamental rights is given as a fundamental right, but a very broad discretion is given to High Courts under Article 226 of the Constitution of India to issue prerogative writs, orders and directions within their territorial jurisdiction to ensure enforcement, extension and protection of the fundamental, constitutional and other legal rights of the 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 conveni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice. The superior court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. 23. The law laid down by Hon'ble the Apex Court in State of U.P. v. Mohammad Nooh (supra) still holds the field and in view of the law laid down a writ in the nature of certiorari 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 rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not stopped immediately. In view of Section 14 of the Act of 2010 there is no doubt that the cause agitated by the original applicant is within the jurisdiction of the Tribunal. The only question is with regard to filing of the application within the limitation prescribed. The Tribunal possess ample power to condone the delay specially in the circumstance that the case of original applicant is that his cause is of recurring nature. In view of it, it shall be too far fetched to say that the Tribunal lack jurisdiction patently. The Tribunal passed the orders impugned after hearing the parties and, therefore, there is no allegation of violation of 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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