The dismissal of an appeal on limitation grounds does not constitute res judicata, but the court may decline to recall its order dismissing a writ petition as withdrawn if an alternative statutory remedy was available and the statutory appeal was dismissed with finality.

Alok Sharma, J.

1. This matter comes up on an application for recall of the order dated 16-4-2013 passed in SBCWP No.1046/2013, titled Aman Sethi v. State of Rajasthan and others.

2. The case of the applicant is that writ petition No.1046/2013 was filed on 23-1-2013 before this court inter alia challenging the communications dated 11-9-2012 whereby a direction was issued under Section 5 of the Environment (Protection) Act, 1986 banning all stone crushing units in Village Mungaska Tehsil Pahari and the further consequential communication No. SCMG/RPCB/(BHR- 19)/2280 dated 6-11-2012 whereby the Rajasthan State Pollution Control Board (RSPCB) issued an order to the petitioner to suspend stone crushing activities despite all requisite permissions including permission for conversion of Khatedari land for industrial purposes and consent to operate from RSPCB obtaining with the petitioner qua the stone crushing unit set up by him. On objection laid to the writ petition regarding availability of alternative remedy of an appeal under Section 16(g) of the National Green Tribunal Act, 2010 (hereinafter ‘the Act of 2010’) the writ petition was withdrawn on 16-4-2013 with liberty to approach the National Green Tribunal (hereinafter ‘the Tribunal’). It has been submitted that thereupon the applicant approached the Principal Seat of the Tribunal at New Delhi in appeal No.61/2013, which however came to be dismissed vide order dated 7-5-2015 for reason of the appeal not having been filed within limitation provided under Section 16 of the Act of 2010. It has been submitted that a statutory appeal there-against filed under Section 22 of the Act of 2010 to the Apex Court was also dismissed vide order dated 2-7-2015.

3. In the context of aforesaid facts it has been submitted that the applicant has been rendered remedy-less in its challenge to the illegal and arbitrary communications dated 11-9-2012 and 6-11-2012, consequent to which his right to run the stone crusher in village Mungaska, Tehsil Pahari District Bharatpur set up with due compliances required in law has been denied. It was submitted that in the circumstances the order dated 16-4-2013 be recalled and the petitioner be allowed to impugn the communications dated 11-9- 2012 and 6-11-2012 before this Court under Article 226 of the Constitution of India in the writ Petition No.1046/2013.

4. Mr. Dhruv Mehta, Senior Counsel with Mr. Jaideep Singh appeared for the applicant and placing reliance on the judgments of the Apex Court submitted that this court should exercise its inherent powers to recall its order dated 16-4-2013 ex debito justitiae taking cognizance of the most unjust situation the petitioner finds himself in. Reliance was placed on the judgment of the Apex Court in the case of Sarguja Transport Service v. State Transport Appellate Tribunal MP [(1987)1 SCC 5] as was on the Apex Court's judgment in Ramesh Chandra Sankla v. Vikram Cement [(2008)14 SCC 58] to contend that even where a case was withdrawn without liberty to file a fresh, there would be no legal bar to initiate a fresh challenge to orders in respect of which the petition was earlier withdrawn as long as there was no intention to abandon the challenge or malafides of bench hunting attributable to the petitioner when the case was earlier withdrawn. It was submitted that Article 226 of the Constitution of India empowers this court to eschew procedural technicalities to do real and substantial justice between the parties including by way of recall of its earlier order dismissing a petition as withdrawn on request made by the petitioner if the facts and circumstances of the case so warrant. Referring to the judgment of the Apex Court in the case of SMI Kazmi v. New India Assurance of Company Limited [(2012)5 SCC 621] it was submitted that the dictum of the Apex court is that the application for recall of the order should be considered sympathetically and not be addressed hyper technically. It was then submitted relying o