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2016 DIGILAW 1509 (RAJ)

Aman Sethi v. State of Rajasthan

2016-10-18

ALOK SHARMA

body2016
ORDER : 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under Section 16(g) of the National Green Tribunal Act, 2010 (hereinafter ‘the Act of 2010’) the writ petition was withdrawn on 16-4-2013 with liberty to approach the National Green Tribunal (hereinafter ‘the Tribunal’).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. 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 on the judgment in the case of Common Cause v. Union of India [ (1999)6 SCC 667 ] that justice is a virtue which transcends all barriers and neither the rules of procedure nor technicalities of law can stand in the way in reaching the aforesaid goal. 5. Mr. It was then submitted relying on the judgment in the case of Common Cause v. Union of India [ (1999)6 SCC 667 ] that justice is a virtue which transcends all barriers and neither the rules of procedure nor technicalities of law can stand in the way in reaching the aforesaid goal. 5. Mr. Dhruv Mehta further submitted that the dismissal of applicant's appeal under Section 16(g) of the Act of 2010 by the Tribunal on 7-5-2015 on the ground of limitation and the following dismissal of the further appeal under Section 22 of the Act of 2010 there-against by the Apex Court on 2-7-2015 does not constitute res judicata as the appeals were not dismissed on merits but on limitation. It was submitted that limitation for laying an appeal only bars the statutory remedy and does not entail extinguishment of a right. It is that right which is now sought to be effectuated by way of reviving writ petition No.1046/2013 dismissed as withdrawn on 16-4-2013 on request. And therefore this recall application be allowed and the writ petition revived to be heard on merits. In support of his submissions Mr. Dhruv Mehta placed reliance on the judgments of the Apex Court in the case of Pujari Bai v. Madan Gopal [ (1989)3 SCC 433 ] and Govindbhai Gordhanbhai Patel v. Gulam Abbas Mulla Allibhai [ (1977)3 SCC 179 ]. 6. Mr. Anurag Sharma, AAG for the State and Mr. Akhil Simlote for Pollution Control Board have submitted that the dismissal of applicant's appeal against the communications dated 11-9-2012 and 6-11-2012 by Tribunal on 7-5-2015 and further appeal there against by the Apex Court on 2-7-2015 entails finality to the challenge by the applicant to the communications dated 11-9-2012 and 6-11-2012. It was submitted that the challenge of the applicant to communications dated 11-9-2012 and 6-11-2012 on whatever count having been sustained up-to the Apex Court, there is no occasion for this court to exercise its extraordinary equitable powers under Article 226 of the Constitution of India on the very same cause of action. It was submitted that if such a course were to be adopted on the purely theoretical ground of the unlimited extraordinary jurisdiction of this court under Article 226 of the Constitution of India, it would be subversive of judicial discipline. It was submitted that if such a course were to be adopted on the purely theoretical ground of the unlimited extraordinary jurisdiction of this court under Article 226 of the Constitution of India, it would be subversive of judicial discipline. It was submitted the Apex Court being the superior court, finality to its judgment cannot be negated by resort to a petition under Article 226 of the Constitution of India. 7. Heard. Considered. 8. Vast as the extraordinary equitable jurisdiction of this court under Article 226 of the Constitution of India is and essential as it for justice to be done, yet neither of the two concepts are absolute in nature. Hierarchy of courts has to be given due regard. Challenge to communications dated 11-9-2012 and 6-11-2012 by the applicant in the first instance was withdrawn at his own instance when faced with objection to the writ petition before this court impugning the communications dated 11-9-2012 and 6-11-2012 for reason of availability of alternative remedy before the Tribunal under the Act of 2010. That the appeal subsequently filed before the Tribunal challenging the communications dated 11-9-2012 and 6-11-2012 under Section 16(g) of the Act of 2010 came to be by the Tribunal on 7-5-2015 for reason of limitation and further appeal there against under Section 22 of the Act of 2010 before the Apex Court also came to be so similarly dismissed cannot be a ground for recall of the order of dismissal as withdrawn passed on 16-4-2013 by this court. Further, the power of this court under Article 226 of the Constitution of India is in any event discretionary. The court's discretion was denied in the first instance as the petitioner had an alternative statutory remedy available to him under the Act of 2010 qua the orders under challenge in the writ petition. That the petitioner has not been able to subsequently avail the alternative remedy, albeit on the ground of limitation is not a circumstance for this court to allow the petitioner to revive the writ petition by recalling its order dated 16-4-2013, particularly when the door of the applicant's cause of action agitated in the writ petition has been closed with finality in the applicant's statutory appeal under Section 22 of the Act of 2010 against the order dated 7-5-2015 passed by the Tribunal having been dismissed on 2-7-2015 by the Apex Court. 9. 9. I therefore find no force in the application for recall, Dismissed.