C/SCA/21189/2018 JUDGMENT DATED: 18/06/2021

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 21189 of 2018

With
R/SPECIAL CIVIL APPLICATION NO. 6432 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J.B.PARDIWALA

and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

==========================================================

1 Whether Reporters of Local Papers may be allowed to YES

see the judgment ?

2 To be referred to the Reporter or not ? YES

3 Whether their Lordships wish to see the fair copy of the NO

judgment ?

4 Whether this case involves a substantial question of law NO

as to the interpretation of the Constitution of India or
any order made thereunder ?

==========================================================
VADODARA ENVIRO CHANNEL LIMITED
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR MIHIR JOSHI, SENIOR ADVOCATE WITH MR SP MAJMUDAR(3456)
for the Petitioner(s) No. 1
MR TRUPESH KATHIRIYA AGP - ADVANCE COPY SERVED TO
GOVERNMENT PLEADER/PP(99) for the Respondent(s) No. 1
MS MANISHA LAVKUMAR SHAH GOVERNMENT PLEADER WITH MR
CHINTAN H DAVE(7193) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
==========================================================

CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA

and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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Date : 18/06/2021

COMMON ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1 In the Special Civil Application No.21189 of 2018 filed under

Article 226 of the Constitution of India, the writ applicant has prayed for
the following reliefs:

“(A) Your Lordships may be pleased to issue a writ of mandamus or a

writ in the nature of mandamus or any other appropriate writ, order or
directions quashing and setting aside the impugned order dated
13.12.2018 passed by the respondent -CPCB (at Annexure-T hereto)
and also further be pleased to direct respondent No.2 not to take any
coercive action against the petitioner – company and/or its directors;

(A-1) Your Lordships may be pleased to issue a writ of mandamus or a

writ in the nature of mandamus or any other appropriate writ, order or
directions quashing and setting aside the impugned order dated
05.01.2019 passed by the respondent – GPCB (at Annexure-Y hereto);

(B) During the pendency and final disposal of the present petition Your
Lordships may be pleased to stay further operation, implementation
and execution of the impugned order dated 13.12.2018 passed by the
respondent – GPCB (at Annexure-T hereto) and also further be pleased
to direct respondent No.2 not to take any coercive action against the
petitioner – company and/or its directors;

(B-1) During the pendency and final disposal of the present petition,
Your Lordships may be pleased to stay further operation,
implementation and execution of the impugned order dated 05.01.2019
passed by the respondent – GPCB (at Annexure-Y hereto);

(C) Pass any such other and/or further orders that may be thought just
and proper, in the facts and circumstances of the present case;”

2 In the connected matter i.e. the Special Civil Application No.6432

of 2020, the writ applicant has prayed for the following reliefs:

“(A) Your Lordships may be pleased to issue a writ of mandamus or a

writ in the nature of mandamus or any other appropriate writ, order or
directions quashing and setting aside the impugned notices dated

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21.01.2019, 22.08.2019, 12.02.2019, 06.09.2019 (at Annexure-M

(colly.) hereto) as well as notice dated 04.10.2019 (at Annexure-Y
hereto) and the letter / email dated 27.12.2019 received from the
respondent – GPCB (At Annexure – BB hereto) and direct the
respondent – GPCB to accept the action plan submitted by the
petitioner and direct respondent to renew CCA for further period of 5
years;

(B) During the pendency and final disposal of the present petition Your
Lordships may be pleased to stay further operation, implementation
and execution of the impugned notices dated 21.01.2019, 22.08.2019,
12.02.2019, 06.09.2019 (at Annexure-M (colly.) hereto) as well as
notice dated 04.10.2019 (at Annexure-Y hereto) and the letter / email
dated 27.12.2019 received from the respondent – GPCB (at Annexure-
BB hereto);

(C) Pass any such other and/or further orders and proper, in the facts
and circumstances of the present case.”

3 As the issues involved in both the writ applications are the same
and the parties are also the same, those were taken up for hearing
analogously and are being disposed of by this common judgement and
order.

4 For the sake of convenience, the Special Civil Application

No.21189 of 2018 is treated as the lead matter.

5 We may clarify that the Special Civil Application No.6432 of 2020

has not been notified today in the cause list. However, as our attention
has been drawn in this regard by the learned appearing for the parties,
we called for the papers of the said matter and have treated the same to
be on today’s cause list.

6 It appears from the materials on record that the writ applicant –

VECL is engaged in the conveyance and discharge of industrial waste
water through the 55 kilometers long channel which carries the trade
effluent of the industries of the GIDC – Nandesari, Petrochemical
Complex as well as various other industries located adjacent to the

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channel. The writ applicant appears to be catering around 36 industries

including two CETPs of the District : Vadodara and Bharuch respectively.
Out of the total length of 55 kilometers of the channel, 23.48 kilometers
has been replaced with a pipeline over a period of time in different
vulnerable stretches.

7 It appears from the materials on record that the Gujarat Pollution

Control Board (‘GPCB’ for short) had issued CCA-AWH-105482 to the
writ applicant upto 31st March 2021.

8 It further appears that the Board issued a closure order under

Section 33A of the Water Act, 1974 dated 13th December 2018 and the
same was to take effect after the expiry of 30 days.

9 Ms. Manisha Lavkumar Shah, the learned Senior Counsel

appearing for the GPCB submitted that the writ applicant had submitted
a time bound action plan along with the bank guarantee of Rs.55 Lakh
and they also paid the Environment Damage Compensation (EDC) to the
tune of Rs.10 Lakh. In such circumstances, the Board thought fit to
revoke its earlier closure order and keep it suspended upto 31 st March
2021. Later, various communications / notices were also issued by the
GPCB. In a recent incident in the first week of April, 2021, two workers
lost their lives and one is in hospital in a critical condition. As on date,
the GPCB has issued a closure order which shall take effect after 30 days
and has also levied interim Environment Damage Compensation to the
tune of Rs.20 lac.

10 The picture that emerges as on date is that the GPCB is not

satisfied with the functioning of the writ applicant. The writ applicant
has been causing extensive damage so far as the environment is
concerned.

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11 Mr. Mihir Joshi, the learned Senior Counsel appearing for the writ
applicant would submit that his client is not an industry. His client is
engaged into the conveyance and discharge of industrial waste water
and that too without the obligation to treat the same through a channel
as referred to above. According to Mr. Joshi, the case of the writ
applicant is that the GPCB has time and again found fault with the
conveyance and discharge of the trade effluent by the writ applicant. In
other words, the conveyance and discharge of the trade effluent is not in
accordance with the fixed statutory parameters. Mr. Joshi finds fault
with all other industries who pump their trade effluent into the plant of
the writ applicant without appropriate treatment as prescribed under the
law.

12 This writ application is of the year 2018. We are of the view that
at the threshold, this writ application should not have been entertained
as the writ applicant has an alternative efficacious remedy of going
before the National Green Tribunal under the provisions of the National
Green Tribunal Act, 2010. Although Mr. Joshi, the learned Senior
Counsel made a gallant effort to convince us that he may not be
relegated to go before the Tribunal and this writ application may be
entertained having regard to the peculiar facts and circumstances of the
case, yet we are not inclined to accept such submission. In fact, the order
passed by a Coordinate Bench dated 11th January 2019 itself makes it
clear that the issue of maintainability of the petition on the ground of
alternative remedy was in the mind of the Court from day one. The
order dated 11th January 2019 reads thus:

“1. Mr. Shah, learned advocate appearing for the respondent No.2-
GPCB has objection against the maintainability of the petition on the
ground that alternative remedy in view of 5.15 of the National Green
Tribunal Act, 2010 is available. The said objection is kept alive and will

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be considered after reply is filed.

2. Mr. Shah, however, also clarified that the respondent No.2GPCB will
take necessary and appropriate action by ensuring that a situation
whereby inflow continuous but outflow is closed will not be created.

3. So as to enable respondent No.2-GPCB to file affidavit, time is

granted.

4. Stand over to 16.01.2019.

5. It is clarified that we have not passed any order which would restrain
the GPCB in any manner from acting in accordance with orders passed
by the Hon'ble Supreme Court or learned Tribunal.”

13 The National Green Tribunal Act has been enacted to provide for
the effective and expeditious disposal of cases relating to environmental
protection and conservation of forests and other natural resources
including the enforcement of any legal right relating to the environment
and giving relief and compensation for damages to the persons and
property and for matters connected therewith or incidental thereto and
which Act came into force on18th October 2010. It provides for the
establishment of a Tribunal, its composition and more particularly in
terms of Section 16 that it shall have the appellate jurisdiction in respect
of any direction issued on or after the commencement of the said Act
under Section 5 of the Environment (Protection) Act, 1986 in terms of
clause (g) thereof. This read with the Schedule I and Section 29 would
clearly indicate that it is the National Green Tribunal alone which would
have the jurisdiction to deal with and decide the matters in connection
with any order or direction passed under Section 5 of the Environment
(Protection) Act, 1986.

14 In Bhopal Gas Peedith Mahila Udyog Sangathan and others vs.

Union of India reported in (2012) 8 SCC 326, the Apex Court held at
paragraphs no. 40 and 41 as below:

“40. Keeping in view the provisions and scheme of the National Green

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Tribunal Act, 2010 (for short the ‘NGT Act’) particularly Sections 14,
29, 30 and 38(5), it can safely be concluded that the environmental
issues and matters covered under the NGT Act, Schedule 1 should be
instituted and litigated before the National Green Tribunal (for short
‘NGT’). Such approach may be necessary to avoid likelihood of conflict
of orders between the High Courts and the NGT. Thus, in unambiguous
terms, we direct that all the matters instituted after coming into force of
the NGT Act and which are covered under the provisions of the NGT
Act and/or in Schedule I to the NGT Act shall stand transferred and can
be instituted only before the NGT. This will help in rendering
expeditious and specialized justice in the field of environment to all
concerned. 41. We find it imperative to place on record a caution for
consideration of the courts of competent jurisdiction that the cases filed
and pending prior to coming into force of the NGT Act, involving
questions of environmental laws and/or relating to any of the seven
statutes specified in Schedule I of the NGT Act, should also be dealt
with by the specialized tribunal, that is the NGT, created under the
provisions of the NGT Act. The Courts may be well advised to direct
transfer of such cases to the NGT in its discretion, as it will be in the
fitness of administration of justice.”

15 In M/s. Diana Buildwell Limited vs. Goa Coastal zone

Management Authority and others [Writ Petition No.335 of 2016], the
writ applicant challenged the revocation of the provisional permission
granted by the Goa Coastal Zone Management Authority. A Division
Bench of the Bombay High Court considered the submissions that the
petitioner had an alternate remedy, both against the revocation of the
permission as also against the order dated 9th February 2016 and that he
could not justifiably question the order dated 9th February 2016 in a Writ
Petition, in view of the availability of a statutory remedy of an appeal to
the Supreme Court under Section 22 of the Act. In that context the
Division Bench of the Bombay High Court considered the Judgment of
the Apex Court in Cicily Kallarackal vs. Vehicle Factory [(2012) 8 SCC
524] where it was held at paragraph 3 that so far as the issue of
jurisdiction is concerned, the learned counsel for the petitioner is right
that the High Court had no jurisdiction to deal with the matter against
the order of the Commission. The Division Bench further considered the
observations in Nivedita Sharma Vs. Cellular Operators Association of

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India and Others[(2011) 14 SCC 337] which reads thus:

“However, it is one thing to say that in exercise of the power vested in

it under Article 226 of the Constitution, the High Court can entertain a
writ petition against any order passed by or action taken by the State
and/or its agency/instrumentality or any public authority or order
passed by a quasi-judicial body/authority, and it is an altogether
different thing to say that each and every petition filed under Article
226 of the Constitution must be entertained by the High Court as a
matter of course ignoring the fact that the aggrieved person has an
effective alternative remedy. Rather, it is settled law that when a
statutory forum is created by law for redressal of grievances, a writ
petition should not be entertained ignoring the statutory dispensation.”

The Division Bench also considered the Judgment in Ram and

Shyam Company Vs. State of Haryana and Others[ (1985) 3 SCC 267]
where the Apex Court has restated the principles, when a writ petition
can be entertained, without exhausting the alternate remedy and finally
held that the petition was not tenable and dismissed the same.

16 In Vellore Citizens Welfare Forums vs. Union of India [2016-3

L.W. 11], the Madras High Court had considered the directions issued by
the Apex Court in Bhopal Gas Peedith Mahila Udyog Sangathan v. Union
of India [(2012) 8 SCC 326], which came to be stayed in Adarsh Co-
operative Housing Society Limited vs. Union of India (SLP
No.27327/2013) and which was subsequently withdrawn giving effect
to the said directions. Latha Ramesh vs. Union of India and others [2016
SCC online Kar 6239], was a petition under Article 226 of the
Constitution of India seeking a writ of mandamus. However, in view of
the enactment of National Green Tribunal Act, 2010 empowering the
Tribunal with the jurisdiction over all civil cases, where a substantial
question relating to environment is involved, the Division Bench of the
Karnataka High Court deemed it appropriate that the petitioner had an
alternative and efficacious remedy and in that view of the matter

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disposed off the petition reserving the right of the petitioner to approach
the National Green Tribunal for necessary orders.

17 In Canara Plastics Manufacturers and Trades Association and

others vs. The State of Karnataka [Writ Petition Nos.14314-14402 of
2016], the challenge was to the notification issued by the Government of
Karnataka in exercise of the power conferred under Section 5 of the
Environment (Protection) Act, 1986 imposing a ban on the manufacture,
supply, sale and use of plastic carry bags, plastic banners, plastic
buntings, flex, plastic flags, plastic plates, plastic cups, plastic spoons,
cling films and plastic sheets used for spreading on dining table etc. in
the State. A plea was taken by the learned Advocate General that the
Writ Petitions were not maintainable as an alternative efficacious
remedy was available under Section 5 of the Act, while it was submitted
to the contrary on behalf of the petitioners. The Division Bench observed
that when there was an alternative efficacious remedy before the
Competent Tribunal constituted under a Statute, i.e., National Green
Tribunal Act, 2010, it was desirable that the matter be placed before the
National Green Tribunal for consideration and accepting the preliminary
objection of the learned Advocate General, dismissed the Writ Petition
on the ground that there exists an alternative and efficacious remedy
before the National Green Tribunal.

18 In Abdul Jabbar vs. State of Kerala [WP(C) No.30809 of 2015(A)],

the challenge was to the environmental clearance and various permits
issued to the respondents No.7 to 9 respectively for extracting sand/
ordinary earth/ minerals from the area referred in the environmental
clearance, permit, licence etc. situated in Kunnathunadu Village of
Arackapady Taluka of Ernakulam District. An interim order was initially
granted which was later modified permitting the respondents No.7 to 9

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to extract minerals, strictly following the environmental clearance and

which was challenged in the Writ Petition. Here again a plea was taken
on behalf of the respondents that the petitioners were having an
alternative remedy to challenge the environmental clearance before the
National Green Tribunal and that the petition was filed without any
bonafides. The Kerala High Court held that if there is any substantial
issue related to the environment, it is a matter to be taken up before the
National Green Tribunal and therefore the Court was of the view that
the petitioners were free to approach the National Green Tribunal
challenging the environmental clearance. Since there was an efficacious
alternative remedy for the petitioners, there was no scope for
interference in the matter and dismissed the petition.

19 In the Authorised Officer, State Bank of Travancore and another

vs Mathew K.C. [Civil Appeal No.1281 of 2016], the Apex Court
observed that it was the solemn duty of the Court to apply the correct
law without waiting for an objection to be raised by the party, especially
when the law stands well settled. It earlier observed that the
discretionary jurisdiction under Article 226 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 the Writ Petition under Article 226 of the
Constitution ought not to be entertained if alternate statutory remedies
are available, except in cases falling within the well defined exceptions
as observed in the Commissioner of Income Tax and others vs. Chhabil
Dass Agarwal [2014(1) SCC 603]. The appeal assailed an interim order
passed in a writ petition under Article 226 of the Constitution, staying
the further proceedings at the stage of Section 13(4) of the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (‘SARFAESI Act’ for short). In that context,
the Apex Court observed that the SARFAESI Act was a complete Code in

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itself, providing for expeditious recovery of dues arising out of loans

granted by financial institutions, the remedy of appeal by the aggrieved
under Section 17 before the Debt Recovery Tribunal, followed by a right
to appeal before the Appellate Tribunal under Section 18. The High
Court ought not to have entertained the writ petition in view of the
adequate alternate statutory remedies available to the respondent and
that the writ petition ought to have been rejected at the threshold on the
ground of maintainability but the Division Bench erred in declining to
interfere with the same. The Two Judge Bench considered the judgment
of Whirlpool Corporation [AIR 1995 SC 22], and held that the writ
petition ought not to have been entertained and the interim order
granted for the mere asking without assigning special reasons, and that
too without even granting opportunity to the appellant to contest the
maintainability of the writ petition and failure to notice the subsequent
developments in the interregnum was not sustainable in law.

20 Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and

others [1999 AIR (SC) 22], the Supreme Court held that the power to
issue prerogative writs under Article 226 of the Constitution is plenary in
nature and is not limited by any other provision of the Constitution. This
power can be exercised by the High Court not only for issuing writs in
the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto
and Certiorari for the enforcement of any of the Fundamental Rights
contained in Part III of the Constitution but also for “any other purpose”.
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 the
restrictions one of which is that if an effective & efficacious remedy is
available, the High Court should not normally exercise its jurisdiction.
But the alternative remedy has been consistently held by this Court not

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to operate as a bar in at least three contingencies, namely (1) where the

Writ Petition has been filed for the enforcement of any of the
Fundamental Rights or (2) where there has been a violation of the
principleS of natural justice or (3) where the order or proceedings are
wholly without jurisdiction or the vires of an Act is challenged. The
jurisdiction of the High Court in entertaining a Writ Petition under
Article 226 of the Constitution, in spite of the alternative statutory
remedies, is not affected, specially in a case where the authority against
whom the Writ is filed is shown to have had no jurisdiction or had
purported to usurp jurisdiction without any legal foundation. From a
discussion of the Judgments in Bhopal Gas Peedith Mahila Udyog
Sangathan, M/s. Diana Buildwell Limited, Vellore Citizens Welfare
Forums, Latha Ramesh, Canara Plastics Manufacturers and Trades
Association, Abdul Jabbar and Authorised officer of State Bank of
Travancore (supra), it is borne out that where a issue pertains to an
order or direction under Section 5 of the Environment (Protection) Act,
the jurisdiction of the National Green Tribunal should be invoked as a
matter of course. However, the judgment in Whirlpool (supra), holds
that even in instances where an alternative efficacious remedy is
available, the writ jurisdiction of this Court can be invoked in the three
contingencies referred to above. It is therefore to be seen whether in the
circumstances of the case the writ applicant has been able to show that
his case falls within the ambit of any of these three predicates/
contingencies culled out in the Whirlpool (supra) or conversely whether
the petition would stand barred in view of the alternative efficacious
remedy available before the NGT.

21 Having heard the learned counsel appearing for the parties and
having considered the materials on record, we are of the view that the
writ applicant has failed to bring his case within all the three of the

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contingencies namely (1) that there was a breach of principles of natural

justice or (2) that there was a violation of fundamental rights or (3) that
the order under challenge was without jurisdiction for this Court to
entertain this petition particularly when it has an equally efficacious,
alternative remedy before the NGT.

22 In view of the aforesaid, without going into the merits of this

litigation or without expressing any opinion on any of the issues
involved in the present litigation, we dismiss this writ application with
liberty to the writ applicant to initiate appropriate proceedings before
the National Green Tribunal under the provisions of the National Green
Tribunal Act, 2010. Since the writ applicant thought fit to avail the writ
jurisdiction of this Court under Article 226 of the Constitution and the
matter has been pending before this Court past almost three years, the
issue of limitation, if at all arises before the Tribunal, the same may be
looked into accordingly. Notice stands discharged.

23 The connected writ application being the Special Civil Application

No.6432 of 2020 filed by the very same writ applicant is also ordered to
be dismissed with liberty to the writ applicant to avail alternative
efficacious remedy before the National Green Tribunal under the
provisions of the National Green Tribunal Act, 2010.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J)
CHANDRESH

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