Dismissed

M/S H.S.M Holdings Pvt. Ltd. v. National Green Tribunal and 6 Others

Allahabad HC6 Oct 2021WRIC/23834/2021

Case brief

AI extract

What is this about?

The High Court examined the maintainability of a writ petition filed against an NGT execution order where an appeal to the Supreme Court was available. While conceding the NGT was not a Constitutional tribunal, the court held the statutory remedy under the 2010 Act must be exhausted absent exceptional circumstances, dismissing the writ.

What the court decided

AI extract

M/S H.S.M Holdings Pvt. Ltd. Vs National Green… — Environment and Pollution | Allahabad HC (2021)

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Court No. - 29

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Case :- WRIT - C No. - 23834 of 2021

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Petitioner :- M/S H.S.M Holdings Pvt. Ltd. Respondent :- National Green Tribunal And 6 Others Counsel for Petitioner :- Nishant Mishra,Rakesh Pande (Senior Adv.),Surya Pratap Singh Parmar Counsel for Respondent :- C.S.C.

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Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Piyush Agrawal,J.

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By this writ petition, a challenge is made to the order dated 25th August, 2021 passed by the National Green Tribunal (NGT) in Execution Application No. 24 of 2020. The writ petition has been filed without taking the remedy of appeal given under the National Green Tribunal Act, 2010.

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Learned counsel for the petitioners submits that the remedy of appeal to the Supreme Court does not bar the jurisdiction of this Court under Article 226 of the Constitution of India. He has placed reliance on the judgment of the Madras High Court in the case of Kollidam Aaru Pathukappu Nala Sangam rep.by its President R.Subramanian & Others Versus The Union of India, rep.by its Secretary to Government, Ministry of Environment & Forests, New Delhi & Others, 2014 SCC OnLine Mad 4928 . The very same issue was considered and decided holding that the NGT is not a creation under the Constitution of India thus, even if remedy of appeal is provided to the Apex Court, writ petition would still be maintainable. A reference of the judgment of the Apex Court in the case of L. Chandrakumar Versus Union of India, 1997 (3) SCC 261 has been given to make a difference between the Central Administrative Tribunal created under Article 323 of the Constitution of India and the NGT not created under the Constitution of India. Accordingly, the writ petition is

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maintainable.

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It is also submitted that the impugned order passed by the Tribunal is in ignorance of the main order of which execution was sought. It is apart from the fact that in compliance to the main order dated 8th March, 2019 passed by the Tribunal, the Secretary (Geology and Mines), State of U.P. had issued an order on 24th July, 2020. Since the order was made in compliance to the order of NGT dated 8th March, 2019, the party aggrieved by the order of the State of U.P. could have approached the Tribunal to challenge it. An execution application was not maintainable. It is further submitted that the complainant had otherwise approached the High Court to challenge the order of the Secretary (Geology and Mines), State of U.P. dated 24th July, 2007. The writ petition was dismissed holding it to be infructuous by efflux of time.

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In view of the above, the Execution Application was not maintainable in the hands of same applicant. The Tribunal did not accept the argument ignoring the fact that it imposes a bar for further petition after dismissal of the writ petition. For all the reasons given above, the writ petition is maintainable.

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We have considered the submissions made by the counsel for the petitioner and perused the record. Before going on the issue of maintainability of the writ petition, we would like to refer to the direction issued by the Tribunal on 8th March, 2019. The operative portion of it is quoted herein:

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" 1. That the grievance raised by the applicant in respect of illegal mining shall be thoroughly looked into by the Ld. Chief Secretary of State of Uttar Pradesh. In case need arises, he may constitute a Committee for site inspection.

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2. All the parties concerned shall be given an opportunity of hearing by the Ld. Chief Secretary before finally deciding the

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matter.

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3. The Ld. Chief Secretary is directed to ensure that no vehicles/machines used in illegal mining shall be released.

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4. The Ld. Chief Secretary shall himself look into in respect of grievance of the application as has been dealt by him in the case relating to illegal mining in O.A. (183 of 2018) to pass appropriate orders.

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5. The Ld. Chief Secretary is also directed to ensure that all cases of mining in the State of Uttar Pradesh are hereafter dealt, in accordance to Sustainable Sand Mining Management Guidelines, 2016, issued by Ministry of Environment, Forest and Climate Change, Government of India.

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However, we give liberty to the applicant to take steps, in accordance to law before the appropriate forum, in case any grievance remains after consideration of the matter by the Ld. Chief Secretary.

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We expect and hope that the Ld. Chief Secretary shall decide this matter at the earliest. "

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A direction quoted above shows consideration of the matter by the Chief Secretary himself as per direction at Para 4. In para 5 a direction has been given for consideration of the case in accordance to Sustainable Sand Mining Management Guidelines, 2016. The perusal of the order dated 24th July, 2020 said to be in compliance of the order of NGT is not by the Chief Secretary though a reference of the meeting under the Chairmanship of the Chief Secretary on 15th April, 2019 has been given.

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The aforesaid shows how the matter was taken up. Despite the specific direction to the Chief Secretary to look into the grievances of the applications and for that to give opportunity of hearing to all the parties, the order does not show hearing by the Chief Secretary thus, it cannot be said to be in compliance of the direction by the Tribunal. In any case, even if it is ignored, the consideration was made as per the directions given

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by the Tribunal above. The order passed by the Secretary (Geology and Mines), State of U.P. does not refer to the provisions of Sustainable Sand Mining Management Guidelines, 2016 despite a specific direction for it.

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Learned counsel for the petitioner was asked to invite the relevant para on the order passed by the Secretary (Geology and Mines), State of U.P. on 24th July, 2020 in reference to the Sustainable Sand Mining Management Guidelines, 2016. Learned counsel for the petitioner fairly admitted that reference of the Guidelines of 2016 does not exist and thereby consideration of the case was made in reference to the Guidelines of 2016.

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The aforesaid is the second part to show how the compliance of the order of the Tribunal has been made. We would not like to make comments on the Chief Secretary for his failure to take an appropriate decision in the matter. A sketchy order has been passed by the Secretary (Geology and Mines), State of U.P.

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In view of the above, the applicant approached the Tribunal to seek execution of the order dated 8th March, 2019, which cannot be said to be without jurisdiction so as to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

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Learned counsel for the petitioner has further made a reference of the order passed by this Court in a writ petition preferred by the applicant to challenge the order dated 24th July, 2020 passed by the Secretary (Geology and Mines), State of U.P. From perusal of the order shows dismissal of the writ petition, rendering it to be infructuous, the Tribunal has considered the issue aforesaid and held that rendering a writ petition to be infructuous by efflux of time does not preclude the Tribunal to

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get execution of their order. Thus, it is not that the issue raised by the petitioner was not dealt with by the Tribunal.

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We do not find any reason for this Court to invoke the jurisdiction under Article 226 of the Constitution of India ignoring the statutory remedy available to the petitioner under the Act of 2010. It is more so when learned counsel for the petitioner was asked to refer the judgment of the Apex Court holding that despite availability of remedy of an appeal under the Act of 2010, a writ petition would still be maintainable. The counsel fairly admits that no judgment of the Apex Court is available in reference to the Act of 2010. The only judgment is of the Madras High Court in the case of Kollidam Aaru Pathukappu Nala Sangam (supra).

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The issue whether the exercise of writ jurisdiction under Article 226 of the Constitution of India can be as a recourse, a reference of Section 22 of the Act of 2010 is relevant and is given hereunder:

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"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):

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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 sufficience cause from preferring the appeal. "

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The provisions quoted above provides for remedy of appeal before the Apex Court and we do not find any justified reason to ignore the availability of statutory remedy so as to maintain this writ petition without having an exceptional circumstances. The argument was raised that impugned order passed in the execution petition is not without jurisdiction so as to maintain

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this writ petition. We have recorded our opinion that all the arguments raised by the petitioner on the issue of maintainability of the writ petition and with due respect, we are not in agreement to the judgment of the Madras High Court in the case of Kollidam Aaru Pathukappu Nala Sangam (supra) in regard to the maintainability of the writ petition despite availability of remedy of appeal under Section 22 of the Act of 2010.

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In view of the discussions made above, we find writ petition to be not maintainable, hence dismissed.

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Order Date :- 6.10.2021 VMA

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(Piyush Agrawal, J.) (Munishwar Nath Bhandari, A.C.J.)

M/S H.S.M Holdings Pvt. Ltd. v. National Green Tribunal and 6 Others

Case brief

What is this about?

What the court decided

M/S H.S.M Holdings Pvt. Ltd. v. National Green Tribunal and 6 Others

Case brief

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