The writ petition is filed by the petitioner on the ground that the order obtained from the National Green Tribunal [for brevity "NGT"], produced at Exhibit P6, is a fraud played on the Tribunal, since the 6th respondent's brother had been consistently before this Court on earlier occasions, alleging that the petitioner did not have the proper licenses. Now, the Tribunal's jurisdiction is sought to be invoked on the ground that the operations carried on by the petitioner is harmful to the environment.
2. The petitioner has filed the above writ petition from the order of the NGT at Exhibit P6. Section 22 of the National Green Tribunal Act, 2010 [for brevity "the Act"] provides an appeal to the Supreme Court, on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908. This Court is not inclined to consider the writ petition for reason of there being an alternate remedy available to the petitioner. WP(C).No.22051 of 2015 - 2 -
3. However, the learned counsel for the petitioner would place reliance on Madras Bar Association v. Union of India [(2014) 10 SCC 1] and S.P.Chengal Varaya Naidu v. Jagannath [(1994) 1 SCC 1] to contend that this is a fit case in which the jurisdiction under Article 226 can be invoked for reason of the 6th respondent having employed fraud on the Tribunal and "fraud", as has been reiterated by the Hon'ble Supreme Court, vitiates all judicial actions.
4. The decision in S.P.Chengal Varaya Naidu (supra) is with respect to a suit and an appeal decided by the High Court, which was set aside by the Supreme Court with observations on the manner in which the disposal was made by the High Court and especially deprecating the observation that there is no legal duty cast on the plaintiff to come to Court with a true case and prove it by true evidence.
5. In Madras Bar Association (supra) also, the Hon'ble Supreme Court was considering with an enactment, which sought to substitute the powers conferred under Article 226 and 227 of the Constitution, by constituting a National Tax Tribunal, which was set aside. Apposite herein would be the WP(C).No.22051 of 2015 - 3 - decision in Union of India & Ors. v. Shri Kant Sharma and Others [2015 (3) Scale 546] wherein the decisions in Mafatlal Industries Ltd. v. Union of India [(1997) 5 SCC 536] and Nivedita Sharma v. Cellular Operators Association of India [(2011) 14 SCC 337] were referred. In Mafatlal Industries Ltd. (supra) it was held so:
"77. ... So far as the jurisdiction of the High Court under Article 226 - or for that matter, the jurisdiction of this Court under Article 32 - is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment".
Then again in Nivedita Sharma (supra) it was held thus:
proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad [AIR 1969 SC 556], it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or WP(C).No.22051 of 2015 - 4 - where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge".
6. In such circumstances, definitely the power of judicial review under Article 226 cannot be avoided; but, however, it can be invoked only in the specific instances as pointed out in the afore-cited declaration; when there is (i) a prayer for enforcement of any of the fundamental rights or where there has been (ii) a violation of principles of natural justice or where the order under challenge is (iii) wholly without jurisdiction or the
(iv) vires of the statute is under challenge. The right to an alternate remedy in such circumstances alone is not a bar in exercising the extra-ordinary discretionary remedy conferred on this Court under Article 226. None of the above circumstances exist as of now in the present writ petition.
7. It is argued that the jurisdiction of the Supreme Court would be confined insofar as Section 22 of the the Act having conferred only such powers as specified in Section 100 of the CPC. Fraud, if employed, definitely could be considered by the Tribunal itself when the petitioner appears and contests the WP(C).No.22051 of 2015 - 5 - matter or raise it in an appeal under Article 32 of the Constitution. The argument that the Hon'ble Supreme Court would be exercising a confined or circumscribed jurisdiction under Section 22 of the Act, is not worthy of acceptance especially going by the declaration in S.P.Chengal Varaya Naidu (supra).
8. In such circumstance, this Court would not speak on the merits of the matter and would leave the petitioner to the remedies either before the Tribunal itself or before the Hon'ble Supreme Court, while declining the exercise of extra-ordinary jurisdiction. The petitioner would also be entitled to raise a preliminary objection before the Tribunal as to the alleged fraud employed by the 6th respondent.
The writ petition would stand dismissed; however, leaving open the remedies of the petitioner.
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K.Vinod Chandran Judge.
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