IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD WRIT PETITION NO.30725 OF 2018 (GM-POL) BETWEEN:
M/S. UNITY FISH MEAL & OIL COMPANY PITHRODI, UDYAVARA UDUPI TALUK & DISTRICT REP. BY ITS MANAGING PARTNER MAHESH U (BY SHRI K.A.ARIGA, ADVOCATE) AND:
1. UNION OF INDIA REPRESENTED BY ITS SECRETARY TO THE MINISTRY OF FOREST ECOLOGY AND ENVIRONMENT, NEW DELHI 2. THE KARNATAKA STATE COASTAL ZONE MANAGEMENT AUTHORITY (KSCZMA) HAVING ITS OFFICE AT M.S.BUILDING DR.AMBEDKAR VEEDHI BANGALORE – 1 REPRESENTED BY ITS MEMBER SECRETARY 3. REGIONAL DIRECTOR (ENVIRONMENT) 1ST FLOOR, C BLOCK, RAJATADARI MANIPAL, UDUPI DISTRICT 4. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO DEPARTMENT OF ENVIRONMENT FOREST ... PETITIONER AND WILDLIFE, M.S.BUILDING DR.AMBEDKAR VEEDHI BANGALORE – 01 5. SRI PUSHPARAJ S/O R.P.KOTIAN AGED ABOUT 45 YEARS R/AT “DHANRAJ”
PITHRODI, UDAYAVARA VILLAGE UDUPI – 574 118 6. SRI RATHNAKAR MENDON S/O U SOMANATHA KOTYAN AGED ABOUT 55 YEARS R/AT PITHRODI UDAYAVARA VILLAGE UDIPI – 574 118 7. SRI DIWAKAR BOLJE S/O VITTALA POOJARY AGED ABOUT 42 YEARS R/AT “ANCHAN NIVAS”
BOLJE, UDAYAVARA VILLAGE UDUPI – 574 118 8. SRI UDAYA KUNDER S/O DEJU SUVARNA AGED ABOUT 42 YEARS R/AT PITHRODI UDAYAVARA VILLAGE UDUPI – 574 118 ... RESPONDENTS (SHRI G.A.SRIKANTEGOWDA FOR RESPONDENT NO.1 SHRI T.L.KIRAN KUMAR, AGA FOR RESPONDENT NOS.2 TO 4 SHRI K.N.PRAVEEN KUMAR, ADVOCATE FOR RESPONDENT NOS.5 TO 8,) ---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE DIRECTION ISSUED BY THE 2ND RESPONDENT UNDER SECTION 5 OF THE ENVIRONMENT (PROTECTION) ACT 1986 DATED 12.06.2018 AS PER ANNEXURE-A AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER The challenge in this petition under Article 226 of the Constitution of India is to an order made under Section 5 of the Environment (Protection) Act, 1986 (for short ‘the said Act of 1986’). Under Section 5-A of the said Act of 1986, a remedy of an appeal is available to the aggrieved person. The appeal is provided before the National Green Tribunal established under the National Green Tribunal Act, 2010 (for short ‘the said Act of 2010’).
2. The learned counsel appearing for the petitioner relies upon several decisions in support of his contention that merely because a statutory remedy of an appeal is available, the jurisdiction of this Court under Article 226 of the Constitution of India is not ousted. His submission is that the impugned order has been passed in breach of principles of natural justice and therefore, this Court should entertain this petition, especially when an ad-interim relief has been granted in this petition. He invited our attention to an order made by the National Green Tribunal in Appeal No.56/2018. He pointed out that on the ground that the order under Section 5 of the said Act of 1986 was not complied with, the appeal was not entertained by the National Green Tribunal on the ground that it is premature.
3. It is well settled proposition of law that notwithstanding the availability of a remedy of an appeal under a statute, the jurisdiction of this Court to entertain a petition under Article 226 of the Constitution of India remains unaffected. However, considering the fact that the jurisdiction is discretionary, normally as a rule of prudence, a writ petition should not be entertained.
4. In the present case, the order impugned has been passed by the Member Secretary of KSCZMA, Forest, Ecology and Environment Department. In this case, an appeal is admittedly provided to the National Green Tribunal, which is a Tribunal created for effective and efficacious disposal of the cases relating to environment protection. That is apparent from the preamble of the said Act of 2010. Thus, the National Green Tribunal is created with the specific object of effective and expeditious disposal of the cases relating to environment. When the said Act of 2010 has created this specialised Tribunal before whom the appeal under Section 5-A of the said Act of 1986 will lie, it will not be appropriate for this Court to exercise its jurisdiction under the Article 226 of the Constitution of India. Merely because in one case, the National Green Tribunal declined to entertain the appeal, it is not that in every case that the National Green Tribunal will decline to entertain the appeal. To enable the petitioner to approach the National Green Tribunal, the interim order which is operating today can be extended for a reasonable time.
5. If the petitioner approaches the National Green Tribunal within a reasonable time, the Tribunal is bound to consider the fact that this writ petition was filed on 16th July 2018 and the same remained pending till today. The time consumed in prosecuting the remedy of writ petition is bound to be taken into consideration by the National Green Tribunal.
6. In view of what is observed above, we decline to entertain this writ petition under Article 226 of the Constitution of India. The petition is disposed of with liberty to the petitioner to prefer an appeal under Section 5-A of the said Act of 1986.
7. To enable the petitioner to prefer an appeal and seek appropriate interim relief from the Tribunal, we direct that the interim relief which is operative in this petition till today will continue to operate for a period of three months from today.
Sd/- CHIEF JUSTICE Sd/- JUDGE AHB