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2017 Supreme(Bom) 643
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA
Anoop V. Mohta and Nutan D. Sardessai, JJ.
Kashinath Jairam Shetye, son of Mr. Jairam Shetye and others – Petitioner
Versus
State of Goa, Through the Chief Secretary and others – Respondents
Writ Petition No. 73 of 2017
Decided On : 28-2-2017
For the Respondent:Shri P. Dangui, Addl. Govt. Advocate, Shri J.E. Coelho Pereira, Senior Advocate with Shri V. Korgaonkar, Advocate
Headnote:National Green Tribunal Act, 2010 - Sections 20, 21 and 22-Proceedings before Tribunal.-Since petitioner appeared in person before Tribunal and not through an Advocate hence petitioner is entitled to an opportunity to agitate issue on merits of matter, on which he was not heard.
It is made clear that Court not decided the issues on merit. The Tribunal to pass appropriate order after hearing the rival contentions of the parties on its own merits. The petitioner to file appropriate application/review application within 15 days and the Tribunal shall consider the same expeditiously, on its own merits, in accordance with law.
National Green Tribunal Act, 2010 - Section 22-Remedy of appeal.-Availability of alternative remedy of appeal under Section 22 of Act should not be reason to deny other remedies available under Act.
Even otherwise, if such stated ex parte order is passed, provision is available for the concerned party to seek for setting aside the order within prescribed period. So also, is the provision for filing the review. The Tribunal is provided and permitted to entertain such application in accordance with law. Remedy, even if available by way of statutory appeal, in the background, therefore, should not be the reason to deny other remedies available under the NGT Act and Rules made thereunder. Therefore, Court refused to accept the preliminary objection about the availability of the statutory appeal as only remedy as contemplated under Section 22 of the NGT Act, but inclined to accept the submission that alternate remedy is available to the petitioners.
National Green Tribunal (Practice and Procedure) Rules, 2011-Rule 28-Review/setting aside of ex parte order.-Requirement of authorized or authenticated copy or certified copy of order for taking steps to raise challenge must be fulfilled.
There is nothing on record to show, unless specifically recorded or found on record of the Tribunal, that Advocate appeared with vakalatnama and with specific written instructions. On instructions, if third party appears only for seeking adjournments and the Tribunal, if passes the order, on merits, this could definitely cause injustice to the person who was appearing in the mater in person. As the proceedings reflect that the petitioners normally appeared in person and argues his own matters. The Tribunal though uploaded the order and made available the copy immediately on the date of the order, that itself, cannot be a reason to say that, that amounts to receipt of copy of the order so passed by the Tribunal. The procedure prescribed for receipt of copy of the order needs to be considered in the background of giving fair opportunity to the party who wants to prefer the statutory appeal/review. The requirement of authorised or authenticated copy or certified copy for taking such steps to raise challenge just cannot be overlooked. In the given case, even for an ex parte and/or interim order was passed, the requisite certified copy is required. Normally a requisite/authenticated/certified copy is a must. Therefore, in the present case merely because the petitioner has filed copy of the order in the writ petition record, it cannot be a reason to accept the case that this amounts to receipt of the copy of the order as contemplated for filing review under the Act or Rules made thereunder.
Anoop V. Mohta, J
Rule. Heard forthwith with the consent the parties. The learned Addl. Government Advocate and learned Advocate waive notice on behalf of the respective respondents.
2. The petitioner has challenged impugned order dated 10.1.2017 passed by the National Green Tribunal (Western Zone Pune)("The Tribunal") constituted with powers under the provisions of the National Green Tribunal Act, 2010( "NGT Act") and the National Green Tribunal (Practices and Procedure) Rules, 2011 ("the Rules") made thereunder.
3. By impugned communication the Tribunal has rejected the application filed by the petitioners seeked various reliefs on merit. Learned Senior Counsel appearing for respondent nos.4 and 5 submits that as per Section 22 of the NGT Act, a statutory remedy of appeal to the Supreme Court is available. Petitioner no.1, who is appearing in person, conceded the provision of availability of appeal to the impugned order. However, he submitted that the application so filed before the Tribunal by the petitioner in person, not through an Advocate, has been disposed off by noting the appearance of Counsel/Advocate to whom there were instructions only to ask for time and/or adjournment. There were no instructions to appear and/or argue the matter on its merits. Section 19 itself contemplates that the Tribunal though not bound by the provisions of the Code of Civil Procedure, 1908 ("CPC") but should follow the principles of natural justice. The learned Senior Counsel appearing for respondent nos.4 and 5, however, objected to this statement/submission in the background that no such request was made and the Tribunal has passed the impugned order on merits after considering the record in the presence of the Advocate.
4. The learned Senior Counsel appearing for respondent nos.4 and 5 has placed reliance on judgment of the Supreme Court in the case of Union of India and ors v. Major General Shri Kant Sharma and anr., [(2015) 6 SCC 773] whereby the Apex Court after considering the Scheme and purpose of Articles 226 and 227 of the Constitution of India including the powers to judicial review in a matter where the statutory alternate is remedy available, has observed as under:-
"16. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Supt. of Taxes and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field.
30. In Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and another v. Sri Seetaram Rice Mill, (2012) 2 SCC 108, a three-Judge Bench held:
"80. It is a settled canon of law that the High Court would not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the courts. It will normally depend upon the facts and circumstances of a given case. The further question that would inevitably come up for consideration before the Court even in such cases would be as to what extent the jurisdiction has to be exercised."
5. It is relevant to note that the Apex Court in Mahanadi Coalfields Limited and others v. Dhansar Engineering Company Private Limited and another, [(2016) 10 SCC 571] after considering the position of law and the various Supreme Court Judgment has observed at para 25 as under:-
"Similarly, it is not necessary for us to burden this judgment with the decisions relied on by the respondents, to contend that existence of alterna
