In Commissioner Of Income Tax v. Kerala State Pollution Control Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941 WP(C).No.14487 OF 2019(I) PETITIONER : NICHOLAS P DIAS,AGED 71 YEARSS/O. LATE PASCAL DIAS, 4A/985,MERCY VILLA, CLUB JUNCTION, EDAPPALLY P.O., VAZHAKKALA VILLAGE, THRIKKAKARA MUNICIPALITY ,KOCHI-682 024 BY ADVS.SRI.K.MADHUSOODANANSRI.T.G.PAULSRI.MATHEW JACOB (KUNNATHU)SRI.SYRIAC JOSEPH RESPONDENTS: 1KERALA STATE POLLUTION CONTROL BOARD,REPRESENTED BY THE CHIEF ENVIRONMENTAL ENGINEER, REGIONAL OFFICE GANDHINAGAR, COCHIN-682 020 2THE SECRETARY, THRIKKAKARA MUNICIPALITY, MUNICIPALITYBUILDINGS, THRIKKAKARA-682 024BUILDINGS, THRIKKAKARA-682 024 3M/S INSTACURE SURGICAL AND MEDICAL CENTRE (PVT) LIMITED, M.K.COMPLEX,THRIKKAKARA ROAD, EDAPPALLY TOLL, COCHIN,PIN-682 024LIMITED, M.K.COMPLEX,THRIKKAKARA ROAD, EDAPPALLY TOLL, COCHIN,PIN-682 024 *ADDL. R4THE APPELLATE AUTHORITY, CONSTITUTED UNDER THE WATER (PREVENTION & CONTROL OF POLLUTION) ACT, 1974, 4TH FLOOR, KSRTC BUILDING, THAMPANOOR,THIRUVANANTHAPURAM- 695 001 IS IMPLEADED VIDE ORDER DATED 13/8/19 IN I.A.NO.3/2019. R2 BY SRI.G.G.MANOJ, SC, THRIKKAKARA MUNICIPALITYR3 BY ADV. SRI.N.KRISHNA PRASADR3 BY ADV. SRI.IMAM GRIGORIOS KARAT SRI MANU RAJ K.J- GOVERNMENT PLEADER ; SRI T.NAVEEN-STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON13.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner is a resident of House No.4, Mercy Villa, Club Junction at Edappllay in Vazhakkala Villageof Thrikkakkara Municipality. The 3[rd] respondent isconducting a hospital just opposite to petitioner'sresidence in Building No.IV/978C3, which wasconstructed under permit No.BA-291/11-12 dated03.01.2012. The petitioner has filed this writ petitionunder Article 226 of the Constitution of India, seekinga writ of certiorari to quash Ext.P10 consent to operateissued to the 3[rd] respondent by the 1[st] respondentKerala State Pollution Control Board, on 26.03.2019.The petitioner has also sought for a writ of mandamuscommanding the 2[nd]respondent Secretary ofThrikkakkara Municipality to take immediate actionagainst the 3[rd] respondent, as the Hospital isfunctioning without complying with the statutoryrequirements for a hospital prescribed under Law and also to take steps to close down the hospital till the statutory formalities are complied with, within a timelimit to be fixed by this Court. 2. On 27.05.2019, when this writ petition came up for admission, the learned Standing Counsel forKerala State Pollution Control Board took notice onadmission for the 1[st] respondent. The learned StandingCounsel for Thrikkakkara Municipality took notice onadmission for the 2[nd] respondent. This Court issuedurgent notice on admission by speed post to the 3[rd]respondent, returnable within three weeks. 3. On 22.07.2019, when this writ petition came up for consideration, the learned Standing Counsel forthe Pollution Control Board pointed out that Ext.P10renewal of consent issued to the 3[rd] respondent isappealable before the Appellate Authority and that, inExt.P11 judgment, this Court recorded the submissionmade by the learned counsel for the additional 2[nd]respondent (the petitioner herein) that his party proposes to challenge the consent granted by thePollution Control Board in appropriate proceedings. 4. A counter affidavit has been filed by the 3[rd]respondent opposing the reliefs sought for in this writpetition. 5. Along with I.A.No.2 of 2019, the petitioner hasplaced on record Ext.P12 appeal filed before theAppellate Authority constituted under the Water(Prevention and Control of Pollution) Act, 1974,Thiruvananthapuram, challenging Ext.P10 renewal ofintegrated consent to operate, granted to the 3[rd]respondent, by the 1[st] respondent Pollution ControlBoard. proposes to challenge the consent granted by thePollution Control Board in appropriate proceedings. 4. A counter affidavit has been filed by the 3[rd]respondent opposing the reliefs sought for in this writpetition. 5. Along with I.A.No.2 of 2019, the petitioner hasplaced on record Ext.P12 appeal filed before theAppellate Authority constituted under the Water(Prevention and Control of Pollution) Act, 1974,Thiruvananthapuram, challenging Ext.P10 renewal ofintegrated consent to operate, granted to the 3[rd]respondent, by the 1[st] respondent Pollution ControlBoard. 6. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondentPollution Control Board, the learned Standing Counselfor the 2[nd] respondent Municipality and also thelearned counsel for the 3[rd] respondent. 7. Ext.P10 renewal of integrated consent to operate granted in favour of the 3[rd] respondent isappealable before the additional 4[th] respondentAppellate Authority constituted under the Water(Prevention and Control of Pollution) Act, 1974. 8. In Commissioner of Income Tax v. ChhabilDas Agarwal [(2014) 1 SCC 603], the Apex Courtheld that non-entertainment of a writ petition underArticle 226 of the Constitution of India when anefficacious alternative remedy is available is a rule andself imposed limitation. It is essentially a rule of policy,convenience and discretion rather than a rule of law.Undoubtedly, it is within the discretion of the HighCourt to grant relief under Article 226 of theConstitution of India, despite the existence ofalternative remedy. However, High Court must notinterfere if there is an adequate efficacious alternativeremedy available to the petitioner and he hasapproached the High Court without availing the same,unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction underArticle 226. 9. In Authorised Officer, State Bank ofTravancore v. Mathew K.C.[(2018) 3 SCC 85], theApex Court reiterated that the discretionaryjurisdiction under Article 226 of the Constitution ofIndia is not absolute but has to be exercisedjudiciously in the given facts of a case and inaccordance with law. The normal rule is that a writpetition under Article 226 of the Constitution of Indiaought not to be entertained if alternative statutoryremedies are available, except in cases falling withinthe well defined exceptions as observed in ChaabilDas Agarwal's case (supra), i.e., where thestatutory authority has not acted in accordance withthe provisions of the enactment in question or indefiance of the fundamental principles of judicialprocedure, or has resorted to invoke the provisions which are repealed, or when an order has been passedin total violation of the principles of natural justice.After referring to the law laid down in ThansinghNathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd.v. State of Orissa [(1983) 2 SCC 433]the ApexCourt held that High Court will not entertain a petitionunder Article 226 of the Constitution if an effectivealternative remedy is available to the aggrievedperson or the statute under which the actioncomplained of contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum iscreated by law for redressal of grievances, a writpetition should not be entertained ignoring thestatutory dispensation. 10. In view of the law laid down in the decisionsreferred to supra, conclusion is irresistible that Ext.P10renewal of integrated consent to operate granted tothe 3[rd] respondent cannot be challenged invoking the writ jurisdiction of this Court under Article 226 of theConstitution of India. 11. By Ext.P11 judgment dated 29.03.2019, W.P. 10. In view of the law laid down in the decisionsreferred to supra, conclusion is irresistible that Ext.P10renewal of integrated consent to operate granted tothe 3[rd] respondent cannot be challenged invoking the writ jurisdiction of this Court under Article 226 of theConstitution of India. 11. By Ext.P11 judgment dated 29.03.2019, W.P. (C).No.3223 of 2019 filed by the 3[rd] respondent hereinwas dismissed as not pressed, without prejudice theright of the petitioner to challenge Ext.P10 renewal ofconsent to operate in appropriate proceedings. Duringthe pendency of this writ petition, the petitioner hasmoved Ext.P12 appeal before the additional 4[th]respondent Appellate Authority. Therefore, it is for thepetitioner to pursue that appeal before the AppellateAuthority. Having considered the submissions made by the learned counsel on both sides, this writ petition isdisposed of by directing the additional 4[th] respondentAppellate Authority to consider Ext.P12 appeal filed bythe petitioner and pass appropriate orders thereon,strictly in accordance with law, with notice to thepetitioner and also to the 3[rd] respondent, and after affording them an opportunity of being heard, as expeditiously as possible, at any rate, within a periodof three months from the date of receipt of a certifiedcopy of this judgment. Sd/- ANIL K.NARENDRAN, JUDGE AV/17/8 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 LETTER DT.25.04.2019 OF THRIKKAKARA MUNICIPALITYMUNICIPALITY EXHIBIT P2CONSENT OF ESTABLISH DT.19.12.2014EXHIBIT P3INSPECTION REPORT DATED 04.05.2017EXHIBIT P3INSPECTION REPORT DATED 04.05.2017 EXHIBIT P4 TEST RESULT OF WELL WATER ISSUED BY DEPT.OF CHEMICAL OCEANOGRAPHYDEPT.OF CHEMICAL OCEANOGRAPHY EXHIBIT P5 TEST RESULT OF WELL WATER ISSUED BY DEPT.OF CHEMICAL OCEANOGRAPHYDEPT.OF CHEMICAL OCEANOGRAPHY EXHIBIT P6 ORDER NO.C1/9632/2016 DATED 2.03.2019 OF THE CHIEF TOWN PLANNER.TVM2.03.2019 OF THE CHIEF TOWN PLANNER.TVM EXHIBIT P7 DECREE IN OS 232 OF 2015 OF THE HON'BLE MUNSIFF COURT,ERNAKULAMHON'BLE MUNSIFF COURT,ERNAKULAM EXHIBIT P8 LETTER DATED 28.02.2019 ADDRESSED TOTHE CHIEF ENVIRONMENTAL ENGINEER,PCBTHE CHIEF ENVIRONMENTAL ENGINEER,PCB EXHIBIT P9 ORDER NO.D/2002/2018 DDS DATED 29.10.2018 OF DIST.COMMITTEE, LOCAL SELF GOVT. DEPT29.10.2018 OF DIST.COMMITTEE, LOCAL SELF GOVT. DEPT EXHIBIT P10 "CONSENT TO OPERATE" ISSUED BY PCB ON 26.03.2019ON 26.03.2019 EXHIBIT P11 JUDGMENT IN WPC NO.3223/2019 DATED 29.03.201929.03.2019 EXHIBIT P12 COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE APPELLATE AUTHORITY CONSTITUTED UNDER THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT 1974, BEFORE THE APPELLATE AUTHORITY CONSTITUTED UNDER THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT 1974, THIRUVANANTHAPURAM EXHIBIT P13 TRUE COPY OF THE LETTER NO.128/RBI/2019/LSGD DATED 29.05.2019 RESPONDENT'S/S EXHIBITS: