Full Text
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1124 OF 2023
Hikal Ltd., ]
Having registered office at Nariman Point, ]
Mumbai and Factory at MIDC Taloja, ]
Tal. Panvel, Dist. Raigad, Maharashtra ] .. Petitioner
Through Ministry of Environment, Forests & ]
Climate Change, New Delhi. ]
2. Gujarat State Pollution Board, ]
Gandhinagar, Gujarat. ]
3. Central Pollution Control Board, ]
Shahdara, Delhi. ]
4. Gujarat Industrial Development Corporation, ]
Gandhinagar, Gujarat. ]
5. Collector & District Magistrate, ]
Surat, Gujarat. ]
6. Maharashtra Pollution Control Board, ]
Sion, Mumbai. ]
7. Brackish Water Research Centre, ]
Surat, Gujarat. ] .. Respondents
ALONG
INTERIM APPLICATION (LODGING) NO.30428 OF 2023
Gujarat State Pollution Board, ] .. Applicant /
Gandhinagar, Gujarat. ] Org. Resp. No.2
Mr. Janak Dwarkadas, Senior Advocate, with Mr. Akshay Patil and
Mr. Jarin Doshi, i/by Malvi Ranchoddas & Co., for the Petitioner.
Mr. A.S. Khandeparkar, Senior Advocate, with Mr. Niranjan Shimpi, for
Ms. Sheetal Shah, i/by Mehta Girdharlal, for Respondent No.2-GSPB.
Mr. Sagar Deb, with Mr. Jagdish Rajgor, for Respondent No.4-GIDC.
Mr. Jitendra Jagtap, with Mr. Umesh Iyer and Mr. Devendra Avhad, for
No.7-Research Centre.
The date on which
JUDGMENT
1. The challenge raised in this writ petition, filed under Article 226 of the Constitution of India, is to the order dated 18th January 2022 passed by the Principal Bench of the National Green Tribunal, New Delhi taking suo motu cognizance of a newspaper report dated 7th January 2022 published in daily “The Indian Express” reporting the death of six persons and rendering about twenty persons to be sick in view of a gas leak at the industrial area in Surat. The petitioner has also challenged the order dated 23rd September 2022 passed by the Principal Bench, National Green Tribunal, New Delhi, wherein the report of the Joint Committee that was constituted pursuant to the earlier order dated 18th January 2022 came to be considered and various directions came to be issued. During pendency of the writ petition, another order dated 24th March 2023 passed by the Principal Bench, National Green Tribunal, New Delhi issuing further directions in the matter of compensating victims of the said gas leak is also under challenge by amending the writ petition. The petitioner further seeks a declaration that the Principal Bench, National Green Tribunal, New Delhi lacks territorial jurisdiction to hear Original Application No.5 of 2022 as well as Miscellaneous Application No.46 of 2022 since it is only the Western Zone of the said Tribunal that has territorial jurisdiction to consider the proceedings.
2. By an interim order dated 24th March 2023, the parties to the writ petition were directed not to act upon the order passed by the Principal Bench, National Green Tribunal, New Delhi accepting the reports dated 31st May 2022 and 4th June 2022 for a period of one week. The said interim order was continued by the orders dated 30th March 2023, 13th April 2023, 25th April 2023, 14th June 2023 and 7th July 2023. Though the writ petition was to be considered on 21st July 2023, it was placed before the Court only on 6th December 2023 for considering Interim Application (Lodging) No.30428 of 2023 moved by the second respondent-Gujarat State Pollution Board for vacating the interim order dated 24th March
2023. The Court observed that from the record it could be seen that the interim order dated 24th March 2023 was not continued after 21st July
2023. On that premise, it was held that the prayer for vacating the interim order would not arise and hence no orders were required in that regard. The said Interim Application was disposed of.. This order dated 6th December 2023 was the subject matter of challenge before the Hon’ble Supreme Court in Petition for Special Leave to Appeal (C) No.28472/2023. By the order dated 5th January 2024, the Hon’ble Supreme Court granted liberty to the petitioner to move this Court in the present writ petition either for seeking extension of stay or for moving a fresh application for grant of interim relief. It directed that no coercive steps be taken against the petitioner for a period of four weeks from 5th January 2024 to enable the petitioner to take the aforesaid steps. It is in the aforesaid backdrop that the writ petition has been considered by us. On behalf of the respondents and especially the second and seventh respondent, an objection to the maintainability of the writ petition has been raised on various counts. We have accordingly heard the learned counsel for the parties on the issue of maintainability of the writ petition.
FACTUAL ASPECTS
3. To consider the issue with regard to the maintainability of the writ petition in the light of the objection as taken, it would be necessary to briefly refer to the relevant facts giving rise to the present proceedings. It is the case of the petitioner that it is engaged in the business of manufacture and sale of Agro Chemicals and Pharmaceuticals having its Units at Taloja and Mahad within the territorial jurisdiction of this Court. It also has its units in the State of Gujarat and Karnataka. On 30th December 2021, the petitioner claims that Sangam Enviro Pvt. Ltd. approached it with a view to process and sell NaHS 16-18% Solution to industries in Gujarat and Rajasthan. Accordingly, the petitioner supplied the aforesaid Solution from its Plant at Taloja. On 6th January 2022, at about 4:00 a.m., the tanker that was carrying the said Solution discharged liquid chemicals into a stream at Sachin, Gujarat Industrial Development Corporation, Surat. As a result of such discharge, six persons lost their lives while about twenty others suffered injuries. This incident was reported in the newspapers on 7th January 2022. The seventh respondent - Brackish Water Research Centre filed Original Application No.5/2022 before the Western Zone of the National Green Tribunal (“NGT”), Pune drawing it’s attention to the aforesaid incident since the said incident had occurred within it’s territorial jurisdiction. The Principal Bench of NGT, New Delhi took suo motu cognizance of the newspaper report dated 7th January 2022 and issued notice to the Central Pollution Control Board; Collector & District Magistrate, Surat, Gujarat; Maharashtra Pollution Control Board as well as the seventh respondent. The suo motu proceedings were registered as Original Application No.5/2022.
4. On 18th January 2022, the Principal Bench of NGT proceeded to constitute a Nine-Member Joint Committee to ascertain the sequence of events, causes of failure, identify persons as well as Authorities responsible for the same, extent of damage caused to life and environment along with other ancillary aspects. It further directed that on the basis of report to be submitted within a period of two months, the State Pollution Control Board as well as the Collector and District Magistrate would take further steps to recover and pay compensation to the victims and also restore the environment. It granted liberty to the Project Proponent, the petitioner, to move the NGT if it was aggrieved by any of the actions of the statutory regulator taken pursuant to the said order.. On 23rd September 2022, the Principal Bench, NGT took up the suo motu proceedings for considering the report of the Joint Committee filed on 31st May 2022 as well as the Additional Report dated 4th June 2022. It noted that though the NGT had permitted the petitioner to put in appearance, it had not done so. It referred to the order passed by this Court in Writ Petition No.6586 of 2022 (Hikal Ltd. Vs. State of Maharashtra & Ors.) dated 23rd June 2022 and thereafter granted opportunity to the alleged violators as well as the sixth respondent-MPCB to submit their response.
5. This writ petition was filed on 15th November 2022 challenging the orders dated 18th January 2022 and 23rd September 2022. During pendency of the writ petition, the NGT on 24th March 2023 considered the suo motu proceedings in the matter of remedial action that was directed to be taken in view of violation of environmental norms. It proceeded to accept the recommendations of the Committee in the matter of grant of compensation to the legal heirs of the deceased as well as the injured. It accordingly directed the amount of compensation to be recovered and thereafter paid to the victims. By amending the writ petition, the order dated 24th March 2023 has also been challenged.
SUBMISSIONS
6. Mr. Janak Dwarkadas, learned Senior Advocate for the petitioner submitted that the Principal Bench of NGT had no jurisdiction whatsoever to transfer to itself proceedings that had been filed by the seventh respondent at the Western Zone of NGT. On 18th January 2022, the Western Zone of NGT was available at Pune when the Principal Bench proceeded to transfer the said proceedings at New Delhi. Referring to the judgment of the Full Bench of this Court in The Goa Foundation Vs. The National Green Tribunal, Principal Bench, New Delhi and Ors., decided on 21st September 2022, it was submitted that such transfer of proceedings by the NGT was contrary to law. Referring to the order dated 18th October 2022 in Petition for Special Leave to Appeal (C) No.17931/2022 that arose from the challenge to the judgment of the Full Bench in The Goa Foundation (supra), it was submitted that matters pertaining to the jurisdiction of the Western Zone ought to be heard only by the Western Zone Bench sitting at Pune. It was then submitted that this Court had jurisdiction to entertain the present writ petition in view of Article 226(2) of the Constitution of India notwithstanding the fact that the orders impugned were passed by the Principal Bench of the NGT. Since the cause of action qua the original proceedings occurred within the territorial jurisdiction of the Western Zone, the matter pertained to the Western Zone Bench at Pune. Since the Principal Bench of NGT had no authority in law to transfer to itself the proceedings pending before the Western Zone, the petitioner had rightly invoked the jurisdiction of this Court. Moreover, the petitioner’s factory was located in Maharashtra and the civil consequences flowing from the impugned orders were suffered at the registered office of the Petitioner in Mumbai. On this basis also, the territorial jurisdiction lay with the Western Zone of NGT.. Referring to the provisions of Section 22 of the National Green Tribunal Act, 2010 (“Act of 2010”), it was submitted that though the remedy of filing an appeal against the aforesaid orders under Section 22 of the Act of 2010 was available, the petitioner had approached this Court under Article 226 of the Constitution of India as the Principal Bench of NGT had no jurisdiction to entertain the proceedings arising out of the incident / accident that occurred within the territorial jurisdiction of the Western Zone. Reference in that regard was made to the judgment of the Hon’ble Supreme Court in Madhya Pradesh High Court Advocates Bar Association and Anr. Vs. Union of India and Anr., 2022 SCC OnLine SC
639. It was also urged that since the incident / accident had occurred at Surat, Gujarat, the aspect of forum non-conveniens was applicable and the writ petition preferred by the petitioner ought to be entertained by this Court. The Public Interest Litigation as well as the criminal proceedings that were pending at the Gujarat High Court arose in a different context and the cause of action therein was also distinct. For this reason, it could not be said that since the aforesaid proceedings were pending before the Gujarat High Court, this Court had no territorial jurisdiction. In any event, since a part of the cause of action arose within the territorial jurisdiction of this Court, the writ petition ought to be entertained on merits. The learned Senior Advocate also referred to the decisions in The Court on its own motion Vs. National Highway Authority of India, Nagpur and Ors., 2015 SCC OnLine Bom 6353, P. Dasa Muni Reddy Vs. P. Appa Rao, (1974) 2 SCC 725 as well as the orders dated 21st February 2022 and 23rd June 2022 passed in Writ Petition Nos.1659 of 2022 and 6586 of 2022 that were filed by the petitioner challenging the action of the sixth respondent. It was thus submitted that the writ petition be entertained on merits.
7. Ms. Manisha Lavkumar, learned Senior Advocate for the second respondent opposed the aforesaid submissions and questioned the filing of the writ petition at this Court on the premise that no part of cause of action arose within the territorial jurisdiction of this Court. It was submitted that the suo motu cognizance taken by the Principal Bench of NGT was prior to the proceedings being entertained by the Western Zone of NGT at Pune. When such suo motu cognizance was taken, notices had not been issued in the proceedings filed by the seventh respondent. At the relevant point of time, namely, 6th January 2022, the Western Zone of NGT was not functioning and to substantiate this aspect, the learned Senior Advocate referred to the Cause List of the said day before the Principal Bench of NGT. Referring to the order dated 23rd June 2022 passed in Writ Petition No.6586 of 2022, it was submitted that the order passed by the sixth respondent directing the petitioner’s plant to be closed had been challenged. The Court was apprised of the fact that the proceedings were pending before the Principal Bench of NGT and at that point of time, the petitioner did not raise any objection to the same. The order passed by this Court in Writ Petition No.6586 of 2022 by which liberty was granted to the Principal Bench of NGT to pass appropriate orders after consideration of the report of the Joint Committee had not been challenged by the petitioner. Thus, having submitted to the jurisdiction of the Principal Bench of NGT, it was not open for the petitioner to contend that the said proceedings initiated suo motu were without jurisdiction. Reference was also made to the undertaking dated 2nd August 2022 that was furnished by the petitioner before the sixth respondent undertaking to comply with the orders passed by the Principal Bench of NGT in Original Application No.5 of 2022.. It was further urged that the incident / accident having occurred at Surat, which was within the jurisdiction of the Gujarat High Court, coupled with the fact that a Public Interest Litigation as well as proceedings arising out of three First Information Reports were being considered by the Gujarat High Court, this Court ought not to entertain the present proceedings since no part of cause of action arose within the territorial jurisdiction of this Court. Referring to the averments made in paragraph 2 of the writ petition, it was submitted that except for stating that the petitioner’s factory was located in the State of Maharashtra, no further pleadings were raised to indicate as to how the cause of action arose here. In the light of the averments in paragraph 25 of the writ petition, it was clear that no part of cause of action arose within the jurisdiction of this Court. In that regard, the learned Senior Advocate referred to the decisions in State of Goa Vs. Summit Online Trade Solutions Pvt. Ltd. and Ors., (2023) 7 SCC 791; Union of India Vs. Alapan Bandyopadhyay, (2022) 3 SCC 133; Oil and Natural Gas Commission Vs. Utpal Kumar Basu and Ors., (1994) 4 SCC 711 and State of Rajasthan and Ors. Vs. M/s. Swaika Properties and Anr., (1985) 3 SCC 217 and submitted that the writ petition was not liable to be entertained.
8. The learned Senior Advocate also urged that the judgment of the Full Bench in the case of The Goa Foundation (supra) was not applicable to the facts of the present case especially when at the relevant point of time, the Western Zone of NGT was not functioning and no notices had been issued by it in the proceedings filed by the seventh respondent. On the other hand on 18th January 2022, the Principal Bench of NGT had itself issued various directions after taking suo motu cognizance of the proceedings. A reference in that regard was made to the decision in Municipal Corporation of Greater Mumbai Vs. Ankita Sinha and Ors., (2022) 13 SCC 401. In the light of the fact that an efficacious alternate remedy was available to the petitioner, the writ petition was not liable to be entertained. Reference in that regard was made to the decisions in Madhya Pradesh High Court Advocates Bar Association and Anr. Vs. Union of India and Anr., 2022 SCC OnLine SC 639; Anil Hoble Vs. Kashinath Jairam Shetye and Ors., 2015 SCC OnLine Bom 3699, and P. Sundararajan Vs. The Deputy Registrar, National Green Tribunal, Southern Zone, Arumbakkam, Chennai, 2015 SCC OnLine Mad 10338. Moreover, if the petitioner sought to urge that the Principal Bench of NGT had no jurisdiction, the same ought to be urged before the Principal Bench and not by invoking the extra-ordinary jurisdiction of this Court. It was thus submitted that the writ petition did not deserve to be entertained on merits.
9. Mr. Mihir Desai, learned Senior Advocate for the seventh respondent also opposed the writ petition by urging that the same was not maintainable before this Court. According to him, though the seventh respondent had filed Original Application No.5 of 2022 at the Western Zone of NGT, the Bench was not functioning on that day. On the basis of media reports, suo motu cognizance of the incident was taken by the Principal Bench after which on 18th January 2022, the Original Application came to be disposed of. Referring to the proceedings filed by the petitioner for challenging the order dated 15th February 2022 passed by the sixth respondent directing closure of the petitioner’s factory being Writ Petition No.6586 of 2022 filed in this Court, it was submitted that the petitioner had knowledge of the proceedings before the Principal Bench of NGT but it chose not to appear there. This was also evident from the order dated 23rd June 2022 passed by this Court in Writ Petition No.6586 of 2022. It was further urged that the incident / accident of gas leakage having occurred in Surat and as the Gujarat High Court was seized of the proceedings in Public Interest Litigation as well as criminal proceedings initiated against the petitioner, wherein the petitioner had also participated, it was clear that no part of cause of action arose within the territorial limits of this Court. The learned Senior Advocate distinguished the decision of the Full Bench in The Goa Foundation (supra) and submitted that the same could not be relied upon for urging that this Court ought to entertain the present writ petition. To substantiate aforesaid contention, the learned Senior Advocate referred to the decisions in Kusum Ingots & Alloys Ltd. Vs. Union of India and Anr., (2004) 6 SCC 254 as well as Summit Online Trade Solutions Pvt. Ltd. and Ors. (supra) and submitted that the writ petition did not warrant consideration.
10. In reply to the aforesaid, the learned Senior Advocate for the petitioner submitted that the Original Application having been rightly filed by the seventh respondent at the Western Zone and suo motu cognizance of the incident / accident having been taken by the Principal Bench, it was only this Court that had jurisdiction to entertain the challenge to the order passed by the Principal Bench of NGT. Though the Western Zone Bench was available when the Principal Bench sought to assume jurisdiction, coupled with the fact that the transfer of the proceedings from the Western Zone to the Principal Bench had never been sought, it was clear that the entire exercise undertaken by the Principal Bench was without jurisdiction. In these circumstances this Court ought to interfere in exercise of writ jurisdiction. It was thus urged that the prayers made in the writ petition deserve consideration.
CONSIDERATION
11. We have heard the learned counsel for the parties at length and with their assistance, we have also perused the material on record. We have thereafter given due consideration to the rival contentions. In the light of the objection raised by the learned counsel for the respondents to the maintainability of the writ petition, it would be necessary to consider the said aspect at the outset. According to the respondents, the writ petition is not maintainable as no part of cause of action has arisen within the territorial limits of this Court. Secondly, it is urged that in view of the provisions of Section 22 of the Act of 2010, an efficacious alternate remedy is available for the petitioner to invoke. While considering this aspect, it would be necessary to refer to the decision of the Hon’ble Supreme Court in Godrej Sara Lee Ltd. Vs. The Excise and Taxation Officer-cum-Assessing Authority and Ors., 2023 INSC 92, wherein the fine distinction with regard to “maintainability” and “entertainability” of a writ petition on the jurisdictional front has been explained. In paragraph 4 of the said decision, it has been observed as under:- “4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as “not maintainable” merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition “not maintainable”. In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which require a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that “entertainability” and “maintainability” of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.” MAINTAINABILITY
12. In the aforesaid context, it would therefore be necessary to first consider the issue with regard to the maintainability of the present writ petition. The petitioner has challenged the orders dated 18th 2022, 23rd September 2022 and 24th March 2023 passed by the Principal Bench, NGT, New Delhi. The issue with regard to the jurisdiction of the High Court under Articles 226 and 227 being ousted by virtue of the provisions of Sections 14 and 22 of the Act of 2010 was the subject matter of challenge before the Hon’ble Supreme Court in Madhya Pradesh High Court Advocates Bar Association and Anr. (supra). After referring to the decision of the Constitution Bench in L. Chandrakumar Vs. Union of India, (1997) 3 SCC 261, it was held that nothing contained in the Act of 2010, either impliedly or explicitly, ousted the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India. The power of judicial review was held to remain in tact and unaffected by the Act of
2010. The writ jurisdiction of the High Court being prerogative in nature, it was held that the same could not be taken away nor outsted as it was a part of the basic structure of the Constitution of India. In the light of this authoritative pronouncement, there can be no manner of doubt that this Court under Articles 226 and 227 of the Constitution of India has the jurisdiction to examine and consider a challenge to an order passed by the NGT. It is thus clear that a writ petition raising challenge to the orders passed by the NGT as in the present case is maintainable and the Court is competent to receive the lis. The writ petition as filed is maintainable.
ENTERTAINABILITY A) PART OF CAUSE OF ACTION
13. It is urged by the petitioner that since part of cause of action for preferring the writ petition arises within the territorial limits of this Court under Article 226(2) of the Constitution of India, the writ petition may be entertained. In paragraph 61 of the writ petition, it has been pleaded as under:- “61. The Petitioner thus submits that in light of the said orders transferring matters from jurisdiction of the Hon'ble Principal Bench of NGT at New Delhi to the Hon'ble NGT Bench at Pune, Maharashtra, this Hon'ble Court will have ample jurisdiction to deal with the present issue raised in this Petition. Moreover, the Petitioner has its registered office in Mumbai i.e. within the original jurisdiction of this Hon'ble Court. Thus, this Hon'ble Court has the supervisory jurisdiction under Article 227 of the Constitution of India, which jurisdiction is very wide and cannot be limited or fettered, including by a direct appeal to the Hon'ble Supreme Court.”
14. In addition to aforesaid, it was urged that the petitioner has its manufacturing unit at Taloja, District Thane, which falls within the territorial jurisdiction of this Court. Moreover, as the orders passed by the Principal Bench prejudicially affect the petitioner within the territorial limits of this Court where it has its registered office, a part of cause of action has arisen within the limits of this Court. In this regard, reference can be made to paragraph 17 of the judgment of the Hon’ble Supreme Court in Summit Online Trade Solutions Pvt. Ltd and Ors. (supra). It has been held therein that while examining as to whether a part of cause of action sufficient to attract Clause (2) of Article 226 of the Constitution of India arises, it would be necessary to ascertain as to whether the facts as pleaded constitute a material, essential or integral part of the cause of action. While so determining, it would be the substance of the matter that would be relevant. The party invoking writ jurisdiction is required to disclose such integral facts in support of the cause of action to enable the Court to decide the dispute. The pleaded facts must have nexus with the subject matter of challenge based on which the prayer can be granted. It has been further held that facts that are not relevant or germane for grant of the prayer would not give rise to a cause of action conferring jurisdiction. The decisions in Oil and Natural Gas Commission as well as M/s. Swaika Properties and Anr. (supra) also emphasize the relevance of the actual part of cause of action arising within the territorial jurisdiction coupled with the fact that the basis on which jurisdiction is sought to be invoked must be an integral part of such cause of action.
15. According to the learned Senior Advocate for the second respondent, any challenge to orders passed by Tribunals created under Articles 323-A and 323-B of the Constitution of India would be subject to scrutiny before the Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls, as held in Alapan Bandyopadhyay (supra). On this premise, it is urged that since the orders passed by the Principal Bench are under challenge, the matter can be scrutinized only by the Division Bench of the High Court within whose jurisdiction the Principal Bench of NGT falls.. It is, however, necessary to note that Alapan Bandyopadhyay (supra) was a case that arose under the provisions of the Administrative Tribunals Act, 1985. The observations in paragraph 38 in the context of the decision in L. Chandrakumar (supra) pertain to Articles 323-A and 323-B. In Municipal Corporation of Greater Mumbai (supra) decided by a Bench of three learned Judges, two of whom were Members of the Bench that decided Alapan Bandyopadhyay (supra) held in paragraph 54 as under:- “54. While we see many tribunals functioning within their specified domains, variances do exist in the manner in which they are designed to function. The statutory tribunals were categorised to fall under four sub-heads; Administrative Tribunals under Article 323-A; Tribunals under Article 323-B; specialised sector tribunals and most prominently; tribunals to safeguard rights under Article 21. As already noted, the duties of NGT brings it within the ambit of the fourth category, creating a compelling proposition for wielding much broader powers as delineated by the statute.”
16. From these observations, it becomes clear that the NGT has been constituted to safeguard rights under Article 21 of the Constitution of India. In that view of the matter the observations made in paragraph 38 of the decision in Alapan Bandyopadhyay (supra) would not stand extended to the orders passed by NGT which has been constituted to safeguard rights under Article 21 of the Constitution of India. Hence, it would not be possible to accept the contention raised by the learned Senior Advocate for the second respondent that the present proceedings raising challenge to the orders passed by the Principal Bench of NGT would not be maintainable before this Court.
17. In the facts of the present case, we find that the orders dated 18th January 2022, 23rd March 2023 passed by the Principal Bench of NGT result in civil consequences being caused to the petitioner. The petitioner has its manufacturing unit at Taloja, District Thane, which falls within the territorial jurisdiction of this Court. The substance in question that was being transported was from the petitioner’s unit at Taloja. The petitioner also has its registered office within the territorial limits of this Court. On this premise, we find that part of cause of action in terms of Article 226(2) of the Constitution of India arises within the territorial jurisdiction of this Court. The writ petition can thus be entertained by this Court. B) AVAILABILITY OF ALTERNATE REMEDY
18. Having found that the prayers made in the writ petition could be examined in exercise of jurisdiction under Article 226 of the Constitution of India, it would now be necessary to examine as to whether the writ petition ought to be entertained despite the fact that an efficacious alternate remedy under Section 22 of the Act of 2010 is available to the petitioner. It is not in dispute that an order passed by the NGT can be subjected to challenge by way of an appeal before the Hon’ble Supreme Court under Section 22 of the Act of 2010. It is thus clear that a statutory remedy under Section 22 of the Act of 2010 is available to the petitioner for challenging the orders passed by the Principal Bench of NGT. However, that by itself cannot be a reason not to entertain the writ petition. According to the petitioner, notwithstanding aforesaid, since the Principal Bench of NGT had no jurisdiction whatsoever to transfer to itself the proceedings filed by the seventh respondent before the Western Zone of NGT, the challenge based on a jurisdictional issue having been raised by the petitioner ought to be examined in the writ petition. An order without jurisdiction could always be subjected to challenge under Articles 226 and 227 of the Constitution of India and the fact that an alternate statutory remedy was available would not preclude the constitutional court from examining such challenge.
19. As laid down in Godrej Sara Lee Ltd (supra) it would be necessary to examine if any exceptional case has been made out by the petitioner for entertaining the writ petition, notwithstanding the fact that an alternate remedy is available. In this regard, it would be necessary to refer to certain factual aspects as regards the mode and manner in which the proceedings under the Act of 2010 originated. The incident / accident is stated to have taken place on 6th January 2022. This resulted in occurrence of six deaths and injuries to about twenty-three persons. According to the petitioner, on the same day the seventh respondent filed Original Application No.5 of 2022 before the Western Zone of NGT at Pune. The Western Zone exercises territorial jurisdiction over the areas of Maharashtra and Gujarat. According to the second respondent, at the relevant time, the Western Zone of NGT was not functioning and the charge of the said proceedings was with the Principal Bench at New Delhi.
20. To consider this aspect, it is necessary to refer to the copy of the Cause List of the Western Zone of NGT as well as the Principal Bench of NGT dated 6th January 2022. The Cause List of the Western Zone indicates that six cases were listed with the caption “through video conferencing”. There is also a note which states that “cases at serial nos.[1] to 6 will be taken up for hearing on 25th February 2022”. Original Application No.5 of 2022 stated to be filed by the seventh respondent is not shown in the Cause List dated 6th January 2022 before the Western Zone.. A perusal of the Advance Cause List of the Principal Bench pertaining to Pune Zonal Bench indicates that cases at serial nos.[1] and 2 were to be taken through video conference while case at serial no.3 was to be taken up for hearing on 16th February 2022. It thus becomes clear that matters pertaining to Western Zone were being considered at the Principal Bench of NGT while all the six cases shown to be listed on 6th 2022 before the Western Zone of NGT at Pune stood adjourned to 25th February 2022. From these Cause Lists, it becomes clear that no proceedings were entertained by the Western Zone at Pune on 6th
2022. On the other hand, matters pertaining to the Western Zone were considered through video conference at the Principal Bench. In addition, it may be stated that in the Cause List relating to Western Zone, Original Application No.5 of 2022 had not been listed. It thus becomes clear that on 6th January 2022, the Western Zone of NGT at Pune did not consider any matters that were listed since the learned Members were not shown to be available.
21. The Principal Bench on 7th January 2022 took suo motu cognizance of the incident / accident that occurred at Surat on 6th January 2022. The said proceedings were registered as Original Application No.5 of 2022 at the Principal Bench in re: News item published in The Indian Express dated 07.01.2022 titled “Gujarat: At least 06 dead, 20 sick after gas leak at industrial area in Surat”. On 10th January 2022, notice was issued to various parties. On 11th January 2022, the seventh respondent filed an interlocutory application being Interim Application No.8 of 2022 seeking impleadment of the sixth respondent. It is thereafter that on 18th 2022 the Principal Bench, NGT passed its order issuing various directions including constitution of a Nine-Member Joint Committee.. From the aforesaid, it becomes clear that suo motu cognizance of a newspaper report dated 7th January 2022, as published in “The Indian Express” was taken by the Principal Bench after which the matter has been considered by it on various dates. From the material on record, it can be seen that prior to the Principal Bench taking suo motu cognizance of the incident / accident dated 6th January 2022, the Western Zone of NGT was not functioning on 6th January 2022 nor has it been shown that prior to the Principal Bench taking cognizance of the matter, the same was being considered by the Western Zone. The contention as urged on behalf of the petitioner that since the Western Zone was also seized of the proceedings relating to the incident / accident dated 6th January 2022, the Principal Bench was not justified in taking suo motu cognizance and entertaining the proceedings is not supported by the record before us.
22. Heavy reliance was placed by the learned Senior Advocate for the petitioner on the judgment of the Full Bench in The Goa Foundation (supra). The facts leading to the matter being considered by the Full Bench indicate that proceedings that were being heard by the Western Zone at Pune were sought to be taken up by a Special Bench at New Delhi comprising of members of the Northern Bench who were joined through video conferencing by members of the Western Zone. The administrative directions issued in that regard were the subject matter of challenge in the proceedings before the High Court of Bombay, seat at Goa. The issuance of said administrative directions was stated to be without jurisdiction. It was held that under Section 4(3) of the Act of 2010, the Chairperson of the NGT had no authority whatsoever to specify the place of sitting of the Tribunal or the territorial jurisdiction under each such place of sitting. The same could be done only by the Central Government by issuing a notification. It was further held that issuance of the administrative directions resulted in complete usurpation of jurisdiction of the Western Zone. The Full Bench held the constitution of the Special Bench at New Delhi to be illegal and further held that it was only the members of the Western Zone that could hear matters pertaining to the Western Zone including matters arising from Goa and Maharashtra.. The aforesaid decision of the Full Bench is the subject matter of challenge before the Hon’ble Supreme Court in Petition for Special Leave to Appeal (C) No.17931/2022. On 18th October 2022, by an ad-interim order, the directions issued by the Full Bench in paragraph 56 of its judgment were stayed. It was clarified that since one Judicial Member and one Expert Member were available for the Western Zone Bench, all matters pertaining to the said Zone including matters arising out of the States of Maharashtra and Goa would be heard only by the Bench sitting at Pune.
23. We do not find that the law as laid down by the Full Bench can in any manner be applied to the facts of the present case. In the case in hand, there is no administrative order passed transferring the proceedings that were pending before the Western Zone to the Principal Bench. On the contrary, it is seen that the Principal Bench itself has taken suo motu cognizance of the incident / accident on 7th January 2022. On 6th 2022, when the seventh respondent filed Original Application No.5 of 2022, the Western Zone was not functioning and the charge of the matters pertaining to the said Zone was with the Principal Bench. We, therefore, find that the decision of the Full Bench in The Goa Foundation (supra) does not assist the case of the petitioner. We may also note at this stage that with regard to the jurisdiction to initiate suo motu action by the NGT, the Hon’ble Supreme Court in Municipal Corporation of Greater Mumbai (supra) has observed that while legitimately working within the contours of its statutory mandate and with procedural safeguards, it was open for the NGT to take appropriate action. To quote, “the hands-off mode for NGT, when faced with exigencies requiring immediate and effective response, would debilitate the forum from discharging its responsibility and this must be ruled out in the interest of justice”.. For aforesaid reasons, the contention raised on behalf of the petitioner that since the Principal Bench of NGT proceeded to take suo motu cognizance of the proceedings of which the Western Zone was seized of, the impugned orders suffer from a jurisdictional error thus requiring this Court to interfere in the matter cannot be accepted. We do not find that any exceptional case has been made out by the petitioner on this count. C) FORUM CONVENIENS
24. Another relevant aspect in the context of Article 226(2) is with regard to the doctrine of forum conveniens. According to the said doctrine, even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. Reference in this regard can be made to the decisions in Kusum Ingots & Alloys Ltd. and Summit Online Trade Solutions Pvt. Ltd. and Ors. (supra).
25. Though we find that a part of cause of action does arise within the territorial limits of this Court, we are inclined to apply the doctrine of forum conveniens in the facts of the present case for more than one reason. The cognizance of the very same incident that occurred at Surat, Gujarat has been taken in public interest by the Gujarat High Court and presently it is seized of the said proceedings. Further, there are about six reports filed within the territorial limits of the Gujarat High Court that seek to initiate criminal prosecution against the accused. The deaths as well as injuries caused have occurred at Surat. The nine-member Joint Committee, as appointed by the Principal Bench, NGT, comprises of Members who are based at Surat and Ahmedabad. We also note that in the present proceedings, the Gujarat State Pollution Board, Gujarat Industrial Development Corporation, Collector and District Magistrate, Surat, Gujarat are party-respondents. It would, therefore, be in the fitness of things that the challenge as raised to the orders dated 8th January 2022, 23rd March 2023 passed by the Principal Bench, NGT is considered in appropriate proceedings before the Gujarat High Court. That Court, in our view would be the appropriate Court to go into the issues raised even in this writ petition. It would not only be convinient to the litigating parties but would also serve the interest of justice obviating the possibility of any conflicting orders being passed with regard to the larger issue. Thus, taking an overall view of the matter, we are of the considered opinion that though a part of the cause of action arises within the territorial limits of this Court, we decline to entertain the writ petition by invoking the doctrine of forum conveniens.
CONCLUSION
26. In view of aforesaid discussion, the present writ petition is not entertained by invoking the doctrine of forum conveniens. The petitioner is free to seek redressal of its grievances as raised in this writ petition by invoking such remedies as are available in law. It is clarified that observations made in the order are only for the purposes of examining whether this Court should exercise discretion and entertain the writ petition in the present facts. All contentions of the parties on merit are kept open except our finding that the Principal Bench of NGT did not commit any jurisdictional error in taking suo-motu congnizance of the incident/accident dated 6th January, 2022 on the premise that Original Application No.5 of 2022 had been filed by the seventh respondent before the Western Zone Bench, Pune. The writ petition is disposed of as not entertained on merits. Consequently, pending Interim Applications are also disposed of. Rule stands discharged, leaving the parties to bear their own costs.. To enable the petitioner to invoke appropriate remedy, this judgment shall operate on expiry of a period of four weeks from today till which time the interim order dated 24th March 2023 shall continue to operate without prejudice to the rights of all parties. [ JITENDRA JAIN, J. ] [ A.S. CHANDURKAR, J. ]