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HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) Nos.11575, 10325, 10345, 10393, 10394, 10653, 10654,
10656, 10657, 10782, 10783, 10885, 10886, 10917, 11647,
11648, 11649, 11650, 11651, 11918, 11920, 11922, 11924,
13001, 13003, 13004, 12089, 12090, 12091, 12737, 12738,
13000, 13444, 13278, 13291, 13293, 13294, 13307, 13308,
13309, 13367, 13368, 13369, 13359, 13555, 11666, 10260,
13235, 13234, 13232, 14303, 14360, 13996, 14102, 14550,
11864, 14709, 14792 & 14925 of 2017
In the matter of application under Articles 226 and 227 of the Constitution
of India.
---------
Kalia Sethi & Another (in W.P.(C) No.11575 of 2017)
Prabin Kumar Gupta (in W.P.(C) No.10325 of 2017)
Bikram Kishore Sahoo (in W.P.(C) No.10345 of 2017)
Rajesh Kumar Sahu (in W.P.(C) No.10393 of 2017)
Prakash Kumar Sahu (in W.P.(C) No.10394 of 2017)
Zeyarat Ali & Another (in W.P.(C) No.10653 of 2017)
Md. Moosa Warsi @ Moosa Warsi (in W.P.(C) No.10654 of 2017)
Ram Murti Prasad (in W.P.(C) No.10656 of 2017)
M/s. Baldev Sahu & Sons (in W.P.(C) No.10657 of 2017)
Dhirendra Prasad Sahu & Others (in W.P.(C) No.10782 of 2017)
Rajesh Prasad & Others (in W.P.(C) No.10783 of 2017)
Bholanath Sahu & Others (in W.P.(C) No.10885 of 2017)
Raghubeer Panigrahi (in W.P.(C) No.10886 of 2017)
Sushama Panigrahi (in W.P.(C) No.10917 of 2017)
Puspanjali Sahoo (in W.P.(C) No.11647 of 2017)
Ranjan Kumar Sahu (in W.P.(C) No.11648 of 2017)
S. Perenta Mali @ Esperenta (in W.P.(C) No.11649 of 2017)
Maheswar Pradhan (in W.P.(C) No.11650 of 2017)
Prasanta Kumar Bisoi @ Bisoyi (in W.P.(C) No.11651 of 2017)
Prasanta Kumar Jena & Another (in W.P.(C) No.11918 of 2017)
Niroj Kumar Gupta (in W.P.(C) No.11920 of 2017)
Kishore Chandra Dash (in W.P.(C) No.11922 of 2017)
Balkishore Pr. Jaiswal (in W.P.(C) No.11924 of 2017)
Lalku Prasad Sahu & Others (in W.P.(C) No.13001 of 2017)
Deepak Kumar Sahu (in W.P.(C) No.13003 of 2017)
Gouri Sankar Dash & Another (in W.P.(C) No.13004 of 2017)
Suresh Chandra Sahu (in W.P.(C) No.12089 of 2017)
Premananda Sahu (in W.P.(C) No.12090 of 2017)
Dambarudhar Sahu (in W.P.(C) No.12091 of 2017)
Sanjay Kumar Sahu (in W.P.(C) No.12737 of 2017)
2
Prabhash Kumar Sahu (in W.P.(C) No.12738 of 2017)
Amar Kumar Sahu (in W.P.(C) No.13000 of 2017)
Nalinikanta Mohanty (in W.P.(C) No.13444 of 2017)
Rajesh Kumar Sahu (in W.P.(C) No.13278 of 2017)
J. Chenneya Reddy (in W.P.(C) No.13291 of 2017)
G. Guru Prasad Reddy (in W.P.(C) No.13293 of 2017)
Bira Kishore Pradhan (in W.P.(C) No.13294 of 2017)
Barun Kumar Pradhan (in W.P.(C) No.13307 of 2017)
Debadullal Sahu (in W.P.(C) No.13308 of 2017)
Suresh Chandra Sahu (in W.P.(C) No.13309 of 2017)
Simanchal Sahu (in W.P.(C) No.13367 of 2017)
Rajendra Kumar Patra (in W.P.(C) No.13368 of 2017)
Bhimasen Sahu (in W.P.(C) No.13369 of 2017)
Rajesh Kumar Sahu (in W.P.(C) No.13359 of 2017)
Rishi Sahu (in W.P.(C) No.13555 of 2017)
Jogendra Prasad & Others (in W.P.(C) No.11666 of 2017)
Aman Raj & Another (in W.P.(C) No.10260 of 2017)
Jiru Purushottam Reddy (in W.P.(C) No.13235 of 2017)
Ramesh Chandra Sahu (in W.P.(C) No.13234 of 2017)
J. Chenneya Reddy (in W.P.(C) No.13232 of 2017)
Mojnuddin Ahmad & Another (in W.P.(C) No.14303 of 2017)
Iftikar Ahmad & Another (in W.P.(C) No.14360 of 2017)
Ranku Sahu (in W.P.(C) No.13996 of 2017)
Kalpana Pusti (in W.P.(C) No.14102 of 2017)
Salma Khan (in W.P.(C) No.14550 of 2017)
Kailash Mahapatra (in W.P.(C) No.11864 of 2017)
Prasanta Kumar Sahu & Another (in W.P.(C) No.14709 of 2017)
Sanjay Kumar Jaiswal (in W.P.(C) No.14792 of 2017)
Moinuddin Ahmad (in W.P.(C) No.14925 of 2017)
...... Petitioners.
- Versus-
State of Odisha & Others (in all the cases)
...... Opposite Parties.
Counsel for Petitioners : Mr. Ashok Mohanty (Sr. Advocate), M/s. B.
K. Nayak, S. K. Jena & L. Pradhan (in W.P.(C) Nos.11575 & 11666 of 2017) M/s. Prafulla Kumar Rath, R. N. Parija, A. K.
Rout, A. Behera, P. K. Sahoo, S. K. Behera, A. K. Behera, S. K. Pattnaik and B. K. Dash (in W.P.(C) Nos.10325, 10345, 10393, 10394, 10653, 10654, 10656, 10657, 10782, 10783, 10885, 10886, 10917, 11918, 11920, 11922, 3 11924, 13001, 13003, 13004, 12089, 12090, 12091, 12737, 12738, 13000, 13444, 10260 & 14102 of 2017) M/s. Sidhartha Das, P. R. Singh and A. K.
Mohanty (in W.P.(C) Nos.11647, 11648, 11649, 11650 & 11651 of 2017) M/s. Arun Kumar Patra and B. Shadangi (in W.P.(C) Nos.13278, 13359, 13555, 11666, 14303, 14360, 14709, 14792 & 14925 of 2017) M/s. J. Sahoo and S. Senapati (in W.P.(C) Nos.13291, 13293, 13294, 13307, 13308, 13309, 13367, 13368, 13369, 13235, 13234, 13232 & 14550 of 2017) M/s. Jugal Kishore Panda, T. K. Acharya, B.
Pasayat and P. K. Behera (in W.P.(C) No. 13996 of 2017) M/s.Umesh Chandra Patnaik, S. D. Mishra, S. Patnaik and M. R. Sahoo (in W.P.(C) No.11864 of 2017) Counsel for Opp.Parties : M/s. S. K. Mishra, S. K. Joshi and S. K.
Lenka. Mr. Sangramjeet Senapati (in W.P.(C) Nos.11575, 10917, 11647, 11648, 11649, 11650, 11651, 13278, 13291, 13293, 13294, 13307, 13308, 13309, 13367, 13368, 13369, 13359, 13555, 11666, 10260, 13235, 13234 & 13232 of 2017) M. S. Sahoo, Addl. Government Advocate.
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA & THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing : 28.07.2017 ; Date of judgment : 9.8.2017
--------------------------------------------------------------------------------------- 4 S. N. Prasad, J. In all these batch of writ petitions the issue regarding jurisdiction of National Green Tribunal and the Machineries to control the pollution under the Environment Act is under challenge, as such all the writ petitions have been decided to be heard together and accordingly heard together and the same are being disposed of by this common order.
2. In these batch of writ petitions there are two sets of writ petitions - in the first set of writ petitions the order passed by the National Green Tribunal as well as the show cause notice issued by the Pollution Control Board are under challenge.
In the second set of writ petitions the order of closure of units as well as the order of the National Green Tribunal, basis upon which the units of the petitioners have been closed, are under challenge.
3. The fact of the cases are that the petitioners are exclusive privilege (licence) holders of main out still liquor shop, licence for the manufacture and sale by retailer of the country spirit in a shop on the out still system since 2005-06 and are carrying on their business as per the licence granted by the State Authorities under the State Excise Laws. While the petitioners were running their out still shops, the Collector of the concerned district has issued an order on 12.5.2017 directing closure of the out still liquor shops pursuant to the order dtd.24.4.2017 passed by the National Green Tribunal, Eastern Zone, Kolkata in O.A. No.19/2017/EZ holding that no liquor manufacture units, be it country or otherwise, shall be permitted to operate without environment clearance. 5 According to the petitioners they have duly been issued with the valid licences by the competent authorities under the State Laws and without examining the issue as to whether the out still shops are coming under the zone of either National Green Tribunal or the Environmental Laws, the orders have been passed and consequent upon the same the out still shops have been closed by the competent authority by passing an order in this regard.
Learned counsel, representing the petitioners, have demonstrated that on the basis of their process of manufacturing and the quantum of manufacturing, they cannot be dragged under the purview of the jurisdiction of National Green Tribunal or the Environmental Laws, the Tribunal, without appreciating this aspect of the matter, has passed an order and thereafter the competent licencing authority has issued closure notice of the units. Hence the arbitrary action has been taken by the authorities putting their interest in jeopardize without considering the fact that they are valid licence holders, issued by the competent department under the State Excise Laws of the State of Odisha.
Learned counsel has drew attention of this court that in view of the notification dtd.14th September, 2006 they are not coming under the list of projects or activities requiring prior environmental clearance as would be evident from reference of the distilleries provided under clause 5(g) wherein all molasses based distilleries or all Cane Juice / non-molasses distillery whose production capacity is greater than 30 kilo-liter per day or all cane juice / non-molasses based distilleries whose production capacity is less than 30 kilo liter per day (KLD).
6
According to them, since they are not coming under the parameter of the notification dtd.14th September, 2006, hence the order passed by the National Green Tribunal or the concerned Collector is without jurisdiction.
4. The second set of writ petitioners have put forth their grievance that on the basis of the order passed by the National Green Tribunal, wherein they were not made parties, the closure order has been passed and basis upon which the out still shops have been closed, which is absolutely arbitrary and unreasonable decision of the authority since they have not been provided to put forth their defence.
They submit that they even have filed applications before the Tribunal for recall of the order passed by it, but that has also been refused to be entertained, hence the order has been passed closing their out still shops, which is not proper.
5. This court has issued notice upon the State as well as the Pollution Control Board, pursuant thereto the Pollution Control Board has appeared through its counsel and filed detailed counter affidavit.
The State has also been represented by the learned Additional Government Advocate who has also filed counter affidavit.
The stand of the State Pollution Control Board is that these writ petitions are not maintainable before this court under Article 226 of the Constitution of India since there is a provision of appeal under Section 22 of National Green Tribunal Act, 2010 before the Hon'ble Supreme Court, as such these writ petitions should not have been entertained by this court. 7
So far merit of the cases are concerned, it has been submitted that as per the scope of Environmental Laws, it is the requirement of the provision of the said laws to protect the environment and for that the Body has been created, both under the Centre as well as the State and the State Pollution Control Board being a creation under the statute to monitor and implementation of the environmental laws, so that the ongoing pollution can be controlled in order to save the universe from the pollutant contents.
He submits that the notification dtd.14th September, 2006 has been issued by the Ministry of Environment and Forest (in short MOEF), in exercise of power conferred under sub-rule 3 of rule 5 of the Environment (Protection) Rules, 1986 for imposing certain restrictions and prohibitions on new projects or activities or on the expansion or modernization of existing projects or activities based on their potential environmental impacts as indicated in the schedule to the notification for that the requirement of prior environmental clearance (EC) from the concerned regulatory authority, which shall referred to be as the Central Government in the Ministry of Environment and Forest for matters falling under category-A in the schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under category B in the said schedule before any construction work or preparation of land by the project management except for securing the land.
The projects have been categorized under two categories - category A and category B and for all such categories of projects the requirement is to make application for prior environmental clearance.
8
He submits as per schedule appended to the notification dtd.14th September 2006 that distillery has been referred under 5(g) wherein all molasses based distillery or cane juice / non-molasses based distillery depending upon their production capacity are required to take clearance certificate from the concerned regulatory authority as the case may be.
He submits that the State Pollution Control Board, Odisha has issued an order on 31.10.2006 in the line of the decision taken by the Central Pollution Control Board, Delhi dtd.7.3.2016 to follow an uniform pattern of classification of industries under Red / Green / Orange / White category which is mandatory and binding upon the State Pollution Control Board, Odisha, according to the said order the distillery (molasses / grain / yeast based) has been kept under Red category while fermentation industry has been kept under Orange category.
He submits that the production capacity of the molasses industry as reflected in the notification dtd.14th September, 2006 has been enhanced from 30 KLD to 60 KLD.
The Ministry of Environment and Forest has issued a letter on 15 th May, 2017 referring therein that the distillery is a major polluting industrial activity hence mandated to go through the Environmental Impact Assessment process delineated under the Environment Impact Assessment (EIA) Notification, 1994 superseded by EIA Notification, 2006 and directed to obtain prior Environmental Clearance for such category of the industrial activities. 9
Learned counsel, on the strength of these documents, has submitted that the Pollution Control Board being the regulatory body to enact environmental laws and following the notification issued time to time, is duty bound to monitor as to whether the Environment Laws is being violated or not and for that purpose the Environmental Clearance is required to be granted by the Board.
He submits that it is incumbent upon the occupier of the industry to make an application in appropriate form to get the environmental clearance. However, some of the industrial units have made their applications for getting their environmental clearance but the applications are incomplete.
He submits that to enforce the various Environmental Laws, National Green Tribunal has been enacted with the scope to maintain the Environmental Laws for the larger issue, hence the National Green Tribunal has every reason to interfere in cases where there is violation of Environmental Laws or ask the regulatory body to look into as to whether the Environmental Law is being followed or not, in that capacity, the National Green Tribunal has passed an order in O.A. No.124/2015/EZ in the case of Biranchi Narayan Mahapatra Vrs. State of Odisha and Others which was disposed of vide order dtd.15th December, 2016 directing the State Pollution Control Board to consider before granting consent to operate;
(a) to ascertain as to whether the country made liquor manufacturing unit seeking consent in molasses based or cane juice / non-molasses based, 10
(b) whether or not such unit falls under either of the categories described in clause 5(g) of the schedule referred to above and accordingly directed to follow the direction to ask the unit to get consent to operate.
He submits that on the basis of the order passed by the National Green Tribunal dtd.15th December, 2016 the Pollution Control Board has taken endeavour by issuing press publications asking the occupier of the out still shops to satisfy it for getting environmental clearance, but in spite of notices having been published in the daily newspaper by wide circulation, they have not come before the Board.
He submits that the Board has also inspected some of the units and found several irregularities which is detrimental to the pollution in the larger scale.
He submits on the strength of these submissions that this court should not interfere otherwise the entire environmental balance not only in the State of Odisha rather the entire environmental balance will be disturbed.
He submits that the jurisdiction of the Pollution Control Board cannot be questioned by any of the industrial establishment be it country liquor or any other unit.
6. We have heard the learned counsels for the parties at length.
Before entering into the dispute, it is relevant to discuss the scope of various environmental laws formulated time to time. One of it is Water (Prevention and Control of Pollution) Act, 1974, other is Air (Prevention and Control of 11 Pollution) Act, 1981 to which we are concerned in the instant case and the Environment (Protection) Act, 1986 as well as the National Green Tribunal Act, 2010 The Water (Prevention and Control of Pollution) Act, 1974 has been enacted for the purpose to maintain or restore wholesomeness of such water courses and for controlling the existing and new discharge of domestic and industrial wastes. The Act, 1974 provides constitution of central as well as state boards to implement the intent of the Act so that the purpose for which the Act has been promulgated may be achieved.
The Air (Prevention and Control of Pollution) Act, 1981 has been enacted taking into consideration the increasing industrialization and the tendency of the majority of industries to congregate in areas which are already heavily industrialized, the problem of air pollution has begun to be felt in the country. The presence in air, beyond certain limits, of various pollutants discharged through industrial emission and from certain human activities connected with traffic, heating, use of domestic fuel, refuse, incinerations, etc. which has a detrimental effect on the health of the people as also on animal life, vegetation and property and to overcome these the Air (Prevention and Control of Pollution) Act, 1981 has been promulgated wherein also the Central as well as State board has been constituted to look into the object of the Act for which it has been enacted.
The Environment (Protection) Act, 1986 has came into being with the object to enact a general legislation on environmental protection which, inter alia, 12 should enable co-ordination of activities of the various regulatory agencies, creation of an authority or authorities with advocate powers for environmental protection, regulation of discharge of environmental pollutants and handling of hazardous substances, speedy response in the event of accidents threatening environment and deterrent punishment to those who endanger human environment, safety and health.
The Environment (Protection) Act, 1986 contains definition of 'hazardous substances' which means any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, micro-organism, property or the environment.
The power of the Central Government to take measure to protect and improve environment has been conferred under the provision of Section 3 of the Environment (Protection) Act which confers power upon the Central Government to take all measures for laying down procedures and safeguards for the handling of hazardous substance, examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution, inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution.
It is evident from this statutory provision that the concern of everyone is to protect environment in all ways.
13
Hon'ble Apex Court, while dealing with the issue of the environmental protection, has observed in the judgment rendered in the case of Goa Foundation, Goa Vrs. Diksha Holdings Private Limited, reported in AIR 2001 SC 184 that the Court should approach that no activities which would ultimately lead to unscientific and unsustainable development and ecological destruction at all be allowed and the courts must scrupulously try to protect the ecology and environment.
The Hon'ble Apex Court in the case of M.C. Mehta Vrs. Union of India, reported in AIR 2002 SC 1696 has observed that to protect the health of the present and future generation and protect and improve the environment, the non- CNG-buses were phased out and ordered for the use of the CNG-buses.
In another judgment rendered by Hon'ble Apex Court in the case of M.C. Mehta Vrs. Union of india, AIR 1988 SC 1037 it has been observed that the Central Government has been empowered to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.
So far as the scope of the Environment (Protection) Act, 1986, the Hon'ble Apex Court in the case of Vellore Citizens Welfare Forum Vrs. Union of India, reported in AIR 1996 sc 2715, has been pleased to observe that the main purpose of the Act is to create an authority or authorities with adequate powers to control pollution and protect the environment.
Under the provision of Section 5 of the Act, 1986 the Central Government can issue directions in writing to any person, officer or any authority 14 and such person, officer or authority shall be bound to comply with such directions.
The Central Government has come out with a notification on 10 th April, 2001 delegating the powers vested upon it under Section 5 to the Chairman, State Pollution Control Boards/ Committees to issue directions to any industry or any local or other authority for the violations of the standards and rules relating to biomedical wastes, hazardous chemicals, industrial solid wastes and municipal solid waste including plastic waste notified under the Environment (Protection) Act, 1986.
It is evident from the perusal of the provision as contained in Section 7 of the Act, 1986 wherein the persons has not been allowed to carry on any industry, operation or process which shall discharge or emit or permit to discharge any environmental pollutants in excess of such standards as may be prescribed.
The National Green Tribunal Act, 2010 has been promulgated with the object for the effective and expeditious disposal of cases relating to environmental protection and conservation of forest and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.
The Act, 2010 contains the definition of 'hazardous substance' which has already been defined under the Environment (Protection) Act, 1986. The definition of 'person' has been given U/s.2(j) which includes an individual also. 15
The Tribunal has been conferred with the power U/s.14 to settle dispute relating to environment arising out of implementation of enactments specified in Schedule I.
The provision of Act, 2010 contains the provision of Appeal U/s.22 to be filed before the Hon'ble Supreme Court.
Section 29 bars jurisdiction to the effect that "no civil court shall have jurisdiction to entertain any appeal in respect of any matter which the tribunal is empowered to determine under its appellate jurisdiction."
In the light of the factual aspect as well as the statutory provision referred herein above, we have examined the rival submissions of the parties herein after point-wise:
Jurisdiction.
7. The learned counsel for the Pollution Control Board has raised a preliminary objection regarding maintainability of the writ petition submitting that in view of provision of Sec.22 of the National Green Tribunal Act, 2010 the writ petition is not maintainable since there is provision of appeal under section 22 of the Act.
To answer this issue it is relevant to quote the provision of section 22 of the National Green Tribunal Act, 2010 which reads as follows:-
"22. Appeal to Supreme Court.- Any person aggrieved by any award, decision or order of the tribunal, may file an appeal to the Supreme Court, within ninety days from the date of communication of the award, decision or order of Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908):16
Provided that the Supreme Court may, entertain any appeal after the expiry of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal."
It is also important to refer the provision of Section 29 which reads as follows:-
"29. Bar of jurisdiction.- (1) With effect from the date of establishment of the Tribunal under this Act, no civil Court shall have jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to determine under its appellate jurisdiction.
(2) No civil Court shall have jurisdiction to settle dispute or entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged or environment damaged which may be adjudicated upon by the Tribunal, and no injunction in respect of any action taken or to be taken by or before the Tribunal in respect of the settlement of such dispute or any such claim for granting any relief or compensation or restitution of property damaged or environment damaged shall be granted by the civil Court."
There is no dispute that there is a provision of appeal under section 22 of the Act, 2010 but the question is as to whether the jurisdiction of High Courts sitting under Article 226 is barred, to answer this issue, it would be relevant to consider the various provisions of National Green Tribunal Act vis-à-vis the authoritative pronouncement of Hon'ble Apex Court regarding power of judicial review vested upon High Courts which is the basic structure of the Constitution and can the Parliament bar the jurisdiction by way of Parliamentary Act contrary to the mandate of the Constitution, to answer this issue it would be relevant to refer the ratio laid down in the judgment rendered in the case where the Administrative Tribunal Act, 1985 has been questioned. The Administrative Tribunal Act was enacted under Article 323- A(1) which was introduced by the Constitution (Forty-second Amendment) Act, 1976. Clause (2)(d) of Article 323-A specifically authorizes the exclusion of jurisdiction of High Court under Articles 226 and 227 by any law made by the Parliament, while answering the issue, the 5 17 Judges Bench of Hon'ble Supreme Court in the case of S.P. Sampath Kumar Vrs. Union of India and Others, reported in (1987) 1 SCC 124 has observed that though judicial review is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution, but if any constitutional amendment made by Parliament takes away from the High Court the power of judicial review in any particular area and vests it in any other institutional mechanism or authority, it would not be violative of the basic structure of doctrine, so long as the essential condition is fulfilled, namely, that the alternative institutional mechanism or authority set up by the parliamentary amendment is no less effective than the High Court.
The Hon'ble Apex Court has again considered the ratio laid down by it in the case of Sampath Kumar (supra) by referring the matter before the 7 Judges Bench in the case of L. Chanra Kumar Vrs. Union of India, reported in (1997) 3 SCC 261 by taking contrary view from the ratio laid down in the case of S. Sampath Kumar, it has been held on the issue whether the power of judicial review vested in the High Court and Supreme Court under Article 226 and 227 and 32 is part of the basic structure of the Constitution.
The doctrine of basic structure was evolved in Kesavananda Bharati case. In Kesavananda Bharati case a thirteen Judge Constitution Bench, by a majority of 7:6, held that though, by virtue of Article 368, Parliament is empowered to amend the Constitution, that power cannot be exercised so as to damage the basic feature of the constitution or to destroy its basic structure. The identification of features which constitute the basic structure of our Constitution has been subject matter of great debate in Indian Constitutional Law. 18
The aspect of judicial review does not find elaborate mention in all the major judgments. Kesavananda Bharati case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution.
It has been observed that the Constitution of India while conferring power of judicial review of legislative action upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions related to judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. It is therefore held in the judgment that the power of judicial review over legislative action vested in the high courts under Article 226 and in the Supreme Court under Article 32 of the constitution is an integral and essential feature of the Constitution, constituting part of its basic structure.
It has also been held that the power vested in the High Courts to exercise judicial superintendence over the decision of all courts and tribunals within their respective jurisdictions is also part of basic structure of the Constitution. This is because of a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.
The Hon'ble apex court, on the basis of these observations, has been pleased to hold the clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226 / 227 and 32 of the Constitution, are unconstitutional. 19
Section 28 of the Administrative Tribunal Act, 1985 and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of the Articles 323-A and 323-B are, to the same extent, unconstitutional.
The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our constitution. While this jurisdiction cannot be ousted, other courts and tribunals may perform a supplemental role in discharging the power conferred by Articles 226/227 and 32 of the Constitution.
In the case of Union of India Vrs. Delhi High Court Bar Association, reported in 2002 4 SCC 275, related to the challenge to the constitutional validity of the recovery of debts due to bank and financial institutions Act, 1993, while upholding the validity of the Act, Hon'ble Supreme Court pointed out in paragraph 25 that the 1993 Act provided for a remedy of appeal to an appellate Tribunal, whose decision was also not final in view of the fact that the same could be subjected to judicial review by the High Court under articles 226 and 227.
In the case of State of Karnataka Vrs. Vishwabharathi House Building Cooperative Society, reported in 2003 (2) SCC 412, the Hon'ble Supreme Court was concerned with the constitutionality of the Consumer Protection Act, 1986, after taking note of various provisions of the Act, Hon'ble Apex Court pointed out in paragraph 41 that "by reason of the provision of the Act, 20 the power of judicial review of the High Court, which is a basic feature of the Constitution, has not been or nor could be taken away".
In paragraph 53 of its judgment in Vishwabharathi the Hon'ble Apex Court pointed out as follows:-
"The provisions relating to power to approach the Appellate Court by a party aggrieved by a decision of the Forums / State Commissions as also the power of the High Court and this Court under Articles 226/227 of the Constitution of India and Article 32 of this court apart from Section 23 of the Act provide for adequate safeguards."
It is evident from the decision of the Hon'ble Apex Court in the case of Vishwabharathi that the provision of a three tire mechanism did not take away the power of judicial review conferred under article 226 and 227.
It is evident that provision of such a three tire mechanism alone was not taken by the Supreme Court as sufficient to uphold the validity of the Act. The availability of the power of judicial review to the High Court under Articles 226 and 227 was also taken as a factor by the Hon'ble Supreme Court for upholding the validity of the Act.
In the judgments rendered in the case of I.R. Coelho (dead) by L.Rs. Vrs. State of Tamil Nadu, reported in 2007 2 SCC1, State of West Bengal & Others Vrs. Committee for Protection of Democratic Rights, West Bengal & Others, reported in 2010 (3) SCC 571, A. K. Behera Vrs. Union of India & Another, reported in 2010 (11) SCC 322 and Indra Das Vrs. State of Assam, reported in 2011 (3) SCC 380 it is quite clear that the power of judicial review conferred upon the High Courts under Articles 226 and 227 is part of the basic 21 structure of the Constitution which cannot be taken away even by a law enacted by the Parliament.
The National Green Tribunal Act, 2010 does not specifically exclude the power of High Courts under Articles 226 and 227 though it excludes the jurisdiction of civil Court as provided under Section 29, but there is no express exclusion of the jurisdiction of the High Court.
Section 22 of the National Green Tribunal Act, 2010 confers power of appeal to the Supreme Court through any person aggrieved by any award, decision or order of tribunal. The same is almost like the second appeal on substantial question of law.
It is evident from the provision of the National Green Tribunal Act, which exercises both original jurisdiction U/s.14 as well as appellate jurisdiction U/s.16, as such it can well be said that whether an order passed by the National Green Tribunal was in its original or appellate jurisdiction, the right of appeal to Supreme Court U/s.22 is put to the same test as that of the second appeal U/s.100 of the Civil Procedure Code.
Section 29 of the National Green Tribunal Act bars the jurisdiction of the civil courts. When we have examined the Administrative Tribunal Act, 1985, there is parameteria provision U/s.28 of the Act, 1985 which bars the jurisdiction of the civil Court and the Hon'ble Apex Court taking into consideration the basic structure of Constitution conferring power of judicial review upon the High Court under Articles 226 and 227 has struck down the provision of section 28 laid down under the Administrative Tribunal Act.
22
Similar issue fell for consideration before the Hon'ble Bombay High Court in the case of B. Brother Builders Vrs. Santosh Daundkar and others (WP/594/2015 with connected writ petitions) wherein at paragraph 22 Hon'ble Bombay High Court has been pleased to hold that the Bombay High Court has jurisdiction to entertain writ petitions filed challenging the order passed by the National Green Tribunal.
The Hon'ble Madras High Court in the case of Kollidam Aaru Pathukappu Nala Sangam Vrs. Union of India, reported in 2014 (5) CTC 397 has held the writ petition maintainable against the order passed by the National Green Tribunal.
8. We, after going through the judgment rendered herein above and discussing the various provisions of the National Green Tribunal Act, are of the view that in absence of any express exclusion, not to entertain the writ petition under Articles 226/ 227 of the Constitution, we hereby reject the objection raised by the Pollution Control Board with respect to maintainability of the writ petition.
ON MERITS
(i) The learned counsels for the petitioners have raised the objection regarding jurisdiction of National Green Tribunal.
We, after discussing the scope of various environmental laws as above and the purpose and intent of creating the National Green Tribunal Act, 2010, are of the view that the objection raised by the petitioners regarding jurisdiction of National Green Tribunal is not worth to be considered in view of the fact that the power conferred to the National Green Tribunal Act is very wide in the 23 sense that any person be an individual can also approach to the Tribunal for enforcement of various environmental laws in order to maintain the ecological balance and as such the intent of the National Green Tribunal Act, 2010 is to protect the environment in all respect by following the different environmental laws and if the regulatory body both in the Centre as well as the State is not exercising their duties properly as per the statutory provision of the notification issued time to time, any person can approach to the Tribunal to bring to its notice regarding non-following the statutory provision under the environmental laws, the National Green Tribunal Act, 2010 by assuming the power can proceed with the matter to regulate the ecological balance on larger issue.
Accordingly, we are of the view that the objection raised by the petitioners in this regard is not acceptable and accordingly the same is rejected.
(ii) So far as the legality and propriety of the order passed by the National Green Tribunal, we thought it proper to discuss the various notifications issued by the Ministry of Environment and Forest or the State Pollution Control Board.
The Ministry of Forest and Environment has issued notification on 14th September 2006 in exercise of power conferred under sub-rule 3 of rule 5 of the Environment (Protection) Rules, 1986 for imposing certain restrictions and prohibitions on new projects or activities and to achieve the same the requirement has been made to obtain prior environmental clearance (EC) from the Central Government in the Ministry of Environment and Forest for the matters falling 24 under category A or at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under category B.
The applications have been sought to be submitted for obtaining prior environmental clearance in all cases falling under category A or category B as the case may be. Schedule A contains the list of projects or activities requiring prior environmental clearance. Under the said notification in the column of project or activity distillery has been kept under sl. no.5(g) which includes all molasses based distillery and all cane juice / non-molasses based distilleries with the production capacity more than 30 KLD (kilo liter per day) and category B includes all cane juice / non-molasses based distilleries with the production capacity of less than 30 KLD. The production capacity has subsequently been enhanced by another notification issued by the Central Government on 25 th June 2015 by substituting 30 KLD with 60 KLD.
The State Pollution Control Board has issued an order on 31.10.2016 in the light of the direction issued by the Central Pollution Control Board dtd.7.8.2016 in order to follow an uniform pattern of classification of industries under Red / Green / Orange/ White category which is mandatory and binding upon State Pollution Control Board, Orissa. The revised classification of industrial units under Red / Orange / Green / White categories as per direction of Central Pollution Control Board dtd.7.3.2016 has been classified wherein the distilleries (molasses/grain/yeast based) has been kept at sl. No.19. 25
The fermentation has been kept under sl. No.23 which also includes manufacture of yeast, beer, distillation of alcohol (extra neutral alcohol) (waste water discharge up to 100 KLD).
It is evident from this order that the units as per revised classification under Red / Orange / Green are required to obtain consent from this Board under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of pollution ) Act, 1981 to establish and operate and pay constant fee as per the notification of Forest and Environment Department, Government of Odisha vide notification dtd.16.7.2012 as revised from time to time.
It is further evident from the letter issued under the signature of Joint Secretary to Government of India, Forest and Environment Department which relates to distillery which according to the authority is a major industrial polluting activity so mandated to go through the Environmental Impact Assessment (EIA) process delineated under the EIA notification 1994, superseded by EIA notification, 2006 and obtain prior environmental clearance (EC).
The State Pollution Control Board has been directed to ensure that no distillery to get consent without environmental clearance as required under law and no distillation operate without valid consent to operate and as such it is requested that direction be issued to State Pollution Control Boards to take necessary action against the distillery units which are being operated without valid Environmental Clearance and valid consent to operate under the law.
9. The learned counsel representing the petitioners have submitted that they are running with the country liquor still shops which is not coming under the 26 definition of distillery and to demonstrate the same they have drew our attention towards the definition of distilleries, country spirit and other various provision of the Excise Act and by drawing the attention of this court towards the provisions of Excise Laws, it has been submitted that since the units in question are not coming under the purview of definition of distillery, hence these notifications are not applicable, however, they have fairly submitted that they are running the ferment industry.
Rebutting their argument, learned counsel appearing for the State Pollution Control Board, has submitted that there is a process of distillation in the process of manufacturing the country spirit through Mahua flower and when there is distillation that leads to the clearance both to check out the Water pollution as well as the Air Pollution.
Submission has been made by learned Additional Government Advocate that the competent authority of the State Government has granted licence to run the units. He fairly submits that so far as applicability of the environmental law is concerned, the same is altogether different aspect which is up to the competent authority to take its own decision We, after appreciating the various documents as referred herein above as well as the rival submission of the parties, are of the views that without any distillation, there cannot be manufacture of country spirit be it from Mahua flower or any other mode, admittedly there is distillation, as such the distillery since being brought under the purview of notification dtd.31.10.2006 and also 27 under the Red as well as Orange category, hence we are not in agreement with the submission of the learned counsel for the petitioners.
We have also taken into consideration the fact on the basis of various reports submitted by the Pollution Control Board as appended to the writ petition, under the heading observation in the inspection report which for ready reference are referred herein below:-
"OBSERVATIONS:
i. The solid residue generated during distillation and fermentation process near are disposed at Pikadi hill area.
ii. The ash generated from the husk fired copper pot (Bhatti) was stacked openly inside the factory premises.
iii. Trade effluent generated from the process discharged to concrete pit of size (8x6x5) (approx.) cubic feet situated inside of its premises and overflow from concrete pit is discharged outside through tanker near Pikadi hill area without any treatment. iv. Rice husk (the raw material for husk fired Bhatti) was stored openly without covered shed. v. The unit has not applied for Consent to operate (CTO), however it has applied for consent to establish (CTE) through online dtd.19.2.2017 but the consent application is treated as incomplete due to lack of required documents."
It is evident from the quoted portion that the Pollution Control Board has found that there is ingredient of pollution, however the said report has been disputed by the learned counsels appearing for the petitioners for the reason that the report has been prepared mechanically, we are not testing the legality and propriety of the report.
The fact remains that the petitioners are the manufacturing units of country spirit through fermentation and distillation which is coming under Red category / Orange category and as such, as per the State Pollution Control Board, Odisha notification dtd.31.10.2016 and as per revised classification list as per the direction of the Central Pollution Control Board dtd.7.3.2016, they are required to obtain consent from the State Pollution Control Board. 28
10. The National Green Tribunal, after hearing the applicants, Pollution Control Board and the petitioners herein, has not adjudicated the issue on merit as would be evident from the order passed in O.A. No.124 of 2015 since the Tribunal has only passed the direction which we are quoting for ready reference:-
"In the facts and circumstances, the State Pollution Control Board shall consider the following before granting consent to operate:
a) To ascertain as to whether or not the country made liquor manufacturing unit seeking consent is molasses based or cane juice / non-molasses based.
b) Whether or not such unit falls under either of the categories described in clause 5(g) of the schedule referred to above.
Based on the above, the PCB shall decide as to whether consent to operate should be granted or not.
If the unit is molasses and / or cane juice based and is of more 30 KLD capacity, it shall direct the applicants seeking consent to operate, to first obtain EC from the MOEF as it would fall under category A. If it is a cane juice / non-molasses based with capacity of less than 30 KLD, it shall be directed to the SEIAA for obtaining EC.
The PCB shall make the requirement of obtaining EC, mandatory for being eligible to be granted consent to operate.
In so far as the manufacturing units which are said to be in operation, list of which has been provided as annexure-A3 at pages 26-35 of the OA, we leave it upon the State PCB to institute appropriate proceedings for the purpose of bringing them within the ambit of this order. Let this exercise be carried out expeditiously."
It is evident from the order passed by the Tribunal that the matter has been left upon the State Pollution Control Board to assess the units as to whether they are coming under the fold of the consent zone or not. Thereafter the other order has been passed being O.A. No.19 of 2017 wherein the contention was raised that pursuant to the order passed by the Tribunal on 24.4.2017, the Collector and District Magistrate, Ganjam has closed down the country liquor manufacturing units since the EIA notification 2006 would not be applicable to the units as no limit on emission in respect of the kind of manufacturing unit as that 29 of the applicants has been prescribed in the EIA notification and negating the argument the Tribunal has disposed of the original application by observing that "Considering the definition of out still as provided in the Orissa Excise Act, there is no dispute about the fact that as in the case of distillery, the unit run by the applicants which are said to be out still units, also used the process of distillation for manufacture of liquor, the only difference being the medium for manufacture of the liquor."
So far as the action on the part of the District Magistrate to close down the unit is concerned, before the Tribunal, stand has been taken by the petitioners that before its closure notices have not been issued, which has been refuted by the Pollution Control Board by submitting that notices to show cause were issued to the occupier of the units on 4.5.2017, as such the Tribunal, accepting the argument of the Pollution Control Board, has given the finding that the principle of natural justice has substantially been complied with.
12. So far as the question related to providing adequate opportunity of being heard, learned counsel for the petitioners on behalf of the occupiers have fairly submitted that they are ready to follow the Environmental Laws including the notification issued by the Pollution Control Board or the Central Board as the case may be, if sufficient opportunity would be granted to them.
Learned counsel appearing for the Pollution Control Board has not raised objection in this regard, rather he has fairly submitted that if they will approach to the competent authority either the Pollution Control Board or the Central Board, as the case may be, that will be decided as per the Law applicable. 30
We, after appreciating the argument advanced on behalf of the parties in this respect, are of the view that since the consent to operate is mandatorily required as per the notification issued by the Central Government as well as the Pollution Control Board but simultaneously the requirement of natural justice is also to be followed and when the occupiers of the units are ready to follow the Environmental Laws, as such in the ends of justice it would be appropriate for this court to disposed of the writ petitions with the following directions:-
(i) The petitioners are granted liberty to approach the competent authority of the Pollution Control Board or the Central Board, as the case may be, for seeking consent to operate in the appropriate application to be filled up, complete in all respect, within period of 7 days from the date of receipt of copy of the order.
(ii) The competent authority before whom the applications would be filed is hereby directed to conclude the process of granting consent to operate and issue environmental clearance if found eligible as per Law applicable within further period of three weeks from the date of receipt of the applications.
(iii) This Court has passed an interim order vide order dtd.10.07.2017 taking into consideration the interim order passed by a coordinate Bench of this court in W.P.(C) No.10260 of 2017 on 01.06.2017. Since we are directing the Board to take decision for issuance of environmental clearance, hence it would be in the ends of justice to direct for continuation of the interim orders granted vide order dtd.1.6.2017 in W.P.(C) No.10260 of 2017 and 31 dtd.10.7.2017 passed in these batch of writ petitions, if the occupiers of the units will make applications within period of seven days from the date of receipt of copy of the order as per direction No.(i), the same shall operate for a period of four weeks, i.e. the maximum period by which the competent authority of the Board has been directed to take decision for granting consent to operate as per direction No.(ii).
It goes without saying that if the units will not make their applications within the stipulated period as directed under direction No.(i), the Board will be at liberty to take all measures provided under Law for its closure.
The further continuation of operation of the units in question would depend upon the final outcome of the decision of the Board which would be taken pursuant to the order passed by this court as directed above.
With these observations and directions the order passed by the National Green Tribunal in O.A. No.124 of 2016 and 19 of 2017 is modified to the extent as indicated above.
Accordingly all the writ petitions stand disposed of with the observations and directions made herein above.
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S.N.Prasad, J.
Sanju Panda, I agree.
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Sanju Panda, J.
Orissa High Court, Cuttack,
Dated the 9th August, 2017/Manas