TaxTMI 
TaxTMI 
2024 (2) TMI 1565
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....B. Mr. Mihir Desai, Senior Advocate, with Ms. Lara Jesani, for Respondent No. 7-Research Centre. JUDGMENT PER A.S. CHANDURKAR, J. 1. The challenge raised in this writ petition, filed under Article 226 of the Constitution of India, is to the order dated 18th January 2022 passed by the Principal Bench of the National Green Tribunal, New Delhi taking suo motu cognizance of a newspaper report dated 7th January 2022 published in daily "The Indian Express" reporting the death of six persons and rendering about twenty persons to be sick in view of a gas leak at the industrial area in Surat. The petitioner has also challenged the order dated 23rd September 2022 passed by the Principal Bench, National Green Tribunal, New Delhi, wherein the report of the Joint Committee that was constituted pursuant to the earlier order dated 18th January 2022 came to be considered and various directions came to be issued. During pendency of the writ petition, another order dated 24th March 2023 passed by the Principal Bench, National Green Tribunal, New Delhi issuing further directions in the matter of compensating victims of the said gas leak is also under challenge by amending the writ petition. The....
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....e maintainability of the writ petition in the light of the objection as taken, it would be necessary to briefly refer to the relevant facts giving rise to the present proceedings. It is the case of the petitioner that it is engaged in the business of manufacture and sale of Agro Chemicals and Pharmaceuticals having its Units at Taloja and Mahad within the territorial jurisdiction of this Court. It also has its units in the State of Gujarat and Karnataka. On 30th December 2021, the petitioner claims that Sangam Enviro Pvt. Ltd. approached it with a view to process and sell NaHS 16-18% Solution to industries in Gujarat and Rajasthan. Accordingly, the petitioner supplied the aforesaid Solution from its Plant at Taloja. On 6th January 2022, at about 4:00 a.m., the tanker that was carrying the said Solution discharged liquid chemicals into a stream at Sachin, Gujarat Industrial Development Corporation, Surat. As a result of such discharge, six persons lost their lives while about twenty others suffered injuries. This incident was reported in the newspapers on 7th January 2022. The seventh respondent - Brackish Water Research Centre filed Original Application No. 5/2022 before the Wester....
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....ingly directed the amount of compensation to be recovered and thereafter paid to the victims. By amending the writ petition, the order dated 24th March 2023 has also been challenged. SUBMISSIONS 6. Mr. Janak Dwarkadas, learned Senior Advocate for the petitioner submitted that the Principal Bench of NGT had no jurisdiction whatsoever to transfer to itself proceedings that had been filed by the seventh respondent at the Western Zone of NGT. On 18th January 2022, the Western Zone of NGT was available at Pune when the Principal Bench proceeded to transfer the said proceedings at New Delhi. Referring to the judgment of the Full Bench of this Court in The Goa Foundation Vs. The National Green Tribunal, Principal Bench, New Delhi and Ors., decided on 21st September 2022, it was submitted that such transfer of proceedings by the NGT was contrary to law. Referring to the order dated 18th October 2022 in Petition for Special Leave to Appeal (C) No. 17931/2022 that arose from the challenge to the judgment of the Full Bench in The Goa Foundation (supra), it was submitted that matters pertaining to the jurisdiction of the Western Zone ought to be heard only by the Western Zone Bench sitting ....
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.... decisions in The Court on its own motion Vs. National Highway Authority of India, Nagpur and Ors., 2015 SCC OnLine Bom 6353, P. Dasa Muni Reddy Vs. P. Appa Rao, (1974) 2 SCC 725 as well as the orders dated 21st February 2022 and 23rd June 2022 passed in Writ Petition Nos. 1659 of 2022 and 6586 of 2022 that were filed by the petitioner challenging the action of the sixth respondent. It was thus submitted that the writ petition be entertained on merits. 7. Ms. Manisha Lavkumar, learned Senior Advocate for the second respondent opposed the aforesaid submissions and questioned the filing of the writ petition at this Court on the premise that no part of cause of action arose within the territorial jurisdiction of this Court. It was submitted that the suo motu cognizance taken by the Principal Bench of NGT was prior to the proceedings being entertained by the Western Zone of NGT at Pune. When such suo motu cognizance was taken, notices had not been issued in the proceedings filed by the seventh respondent. At the relevant point of time, namely, 6th January 2022, the Western Zone of NGT was not functioning and to substantiate this aspect, the learned Senior Advocate referred to the Caus....
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....1985) 3 SCC 217 and submitted that the writ petition was not liable to be entertained. 8. The learned Senior Advocate also urged that the judgment of the Full Bench in the case of The Goa Foundation (supra) was not applicable to the facts of the present case especially when at the relevant point of time, the Western Zone of NGT was not functioning and no notices had been issued by it in the proceedings filed by the seventh respondent. On the other hand on 18th January 2022, the Principal Bench of NGT had itself issued various directions after taking suo motu cognizance of the proceedings. A reference in that regard was made to the decision in Municipal Corporation of Greater Mumbai Vs. Ankita Sinha and Ors., (2022) 13 SCC 401. In the light of the fact that an efficacious alternate remedy was available to the petitioner, the writ petition was not liable to be entertained. Reference in that regard was made to the decisions in Madhya Pradesh High Court Advocates Bar Association and Anr. Vs. Union of India and Anr., 2022 SCC OnLine SC 639; Anil Hoble Vs. Kashinath Jairam Shetye and Ors., 2015 SCC OnLine Bom 3699, and P. Sundararajan Vs. The Deputy Registrar, National Green Tribunal, S....
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....l Application having been rightly filed by the seventh respondent at the Western Zone and suo motu cognizance of the incident / accident having been taken by the Principal Bench, it was only this Court that had jurisdiction to entertain the challenge to the order passed by the Principal Bench of NGT. Though the Western Zone Bench was available when the Principal Bench sought to assume jurisdiction, coupled with the fact that the transfer of the proceedings from the Western Zone to the Principal Bench had never been sought, it was clear that the entire exercise undertaken by the Principal Bench was without jurisdiction. In these circumstances this Court ought to interfere in exercise of writ jurisdiction. It was thus urged that the prayers made in the writ petition deserve consideration. CONSIDERATION 11. We have heard the learned counsel for the parties at length and with their assistance, we have also perused the material on record. We have thereafter given due consideration to the rival contentions. In the light of the objection raised by the learned counsel for the respondents to the maintainability of the writ petition, it would be necessary to consider the said aspect at th....
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....s alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition "not maintainable". In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which require a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion....
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....arises within the territorial limits of this Court under Article 226(2) of the Constitution of India, the writ petition may be entertained. In paragraph 61 of the writ petition, it has been pleaded as under :- "61. The Petitioner thus submits that in light of the said orders transferring matters from jurisdiction of the Hon'ble Principal Bench of NGT at New Delhi to the Hon'ble NGT Bench at Pune, Maharashtra, this Hon'ble Court will have ample jurisdiction to deal with the present issue raised in this Petition. Moreover, the Petitioner has its registered office in Mumbai i.e. within the original jurisdiction of this Hon'ble Court. Thus, this Hon'ble Court has the supervisory jurisdiction under Article 227 of the Constitution of India, which jurisdiction is very wide and cannot be limited or fettered, including by a direct appeal to the Hon'ble Supreme Court." 14. In addition to aforesaid, it was urged that the petitioner has its manufacturing unit at Taloja, District Thane, which falls within the territorial jurisdiction of this Court. Moreover, as the orders passed by the Principal Bench prejudicially affect the petitioner within the territorial limits o....
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....three learned Judges, two of whom were Members of the Bench that decided Alapan Bandyopadhyay (supra) held in paragraph 54 as under :- "54. While we see many tribunals functioning within their specified domains, variances do exist in the manner in which they are designed to function. The statutory tribunals were categorised to fall under four sub-heads; Administrative Tribunals under Article 323-A; Tribunals under Article 323-B; specialised sector tribunals and most prominently; tribunals to safeguard rights under Article 21. As already noted, the duties of NGT brings it within the ambit of the fourth category, creating a compelling proposition for wielding much broader powers as delineated by the statute." 16. From these observations, it becomes clear that the NGT has been constituted to safeguard rights under Article 21 of the Constitution of India. In that view of the matter the observations made in paragraph 38 of the decision in Alapan Bandyopadhyay (supra) would not stand extended to the orders passed by NGT which has been constituted to safeguard rights under Article 21 of the Constitution of India. Hence, it would not be possible to accept the contention raised by the l....
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....ge. 19. As laid down in Godrej Sara Lee Ltd (supra) it would be necessary to examine if any exceptional case has been made out by the petitioner for entertaining the writ petition, notwithstanding the fact that an alternate remedy is available. In this regard, it would be necessary to refer to certain factual aspects as regards the mode and manner in which the proceedings under the Act of 2010 originated. The incident / accident is stated to have taken place on 6th January 2022. This resulted in occurrence of six deaths and injuries to about twenty-three persons. According to the petitioner, on the same day the seventh respondent filed Original Application No. 5 of 2022 before the Western Zone of NGT at Pune. The Western Zone exercises territorial jurisdiction over the areas of Maharashtra and Gujarat. According to the second respondent, at the relevant time, the Western Zone of NGT was not functioning and the charge of the said proceedings was with the Principal Bench at New Delhi. 20. To consider this aspect, it is necessary to refer to the copy of the Cause List of the Western Zone of NGT as well as the Principal Bench of NGT dated 6th January 2022. The Cause List of the Weste....
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....e Principal Bench after which the matter has been considered by it on various dates. From the material on record, it can be seen that prior to the Principal Bench taking suo motu cognizance of the incident / accident dated 6th January 2022, the Western Zone of NGT was not functioning on 6th January 2022 nor has it been shown that prior to the Principal Bench taking cognizance of the matter, the same was being considered by the Western Zone. The contention as urged on behalf of the petitioner that since the Western Zone was also seized of the proceedings relating to the incident / accident dated 6th January 2022, the Principal Bench was not justified in taking suo motu cognizance and entertaining the proceedings is not supported by the record before us. 22. Heavy reliance was placed by the learned Senior Advocate for the petitioner on the judgment of the Full Bench in The Goa Foundation (supra). The facts leading to the matter being considered by the Full Bench indicate that proceedings that were being heard by the Western Zone at Pune were sought to be taken up by a Special Bench at New Delhi comprising of members of the Northern Bench who were joined through video conferencing by....
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....ion by the NGT, the Hon'ble Supreme Court in Municipal Corporation of Greater Mumbai (supra) has observed that while legitimately working within the contours of its statutory mandate and with procedural safeguards, it was open for the NGT to take appropriate action. To quote, "the hands-off mode for NGT, when faced with exigencies requiring immediate and effective response, would debilitate the forum from discharging its responsibility and this must be ruled out in the interest of justice". For aforesaid reasons, the contention raised on behalf of the petitioner that since the Principal Bench of NGT proceeded to take suo motu cognizance of the proceedings of which the Western Zone was seized of, the impugned orders suffer from a jurisdictional error thus requiring this Court to interfere in the matter cannot be accepted. We do not find that any exceptional case has been made out by the petitioner on this count. C) FORUM CONVENIENS 24. Another relevant aspect in the context of Article 226(2) is with regard to the doctrine of forum conveniens. According to the said doctrine, even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the ....