writ petitions will not be entertained when alternate statutory remedies are available.

Kerala High Court
M.K.Salim vs State Of Kerala on 13 August, 2021
 IN THE HIGH COURT OF KERALA AT ERNAKULAM
 PRESENT
 THE HONOURABLE MR.JUSTICE S.V.BHATTI
 &
 THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
 FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
 WP(C) NO. 19580 OF 2019

15. Ext.P1 was issued on 04-10-2016. Pursuant to the grant of EC, the project proponent commenced
construction of the building after obtaining a building permit from the local authority. The building
permit was issued by the 6th respondent on 27-04-2017 with permit number ZK2/BA258/16. The
writ petition was filed on 15-07-2019, almost 33 months after the issuance of Ext.P1. We notice that
none has preferred to challenge the grant of building permit in any mode known to law. The local
authority has also not cancelled or withdrawn the building permit. As the building permit remains
valid as on date, it has to be presumed that the construction of the building is without any infraction
of the building rules.
16. Petitioner has preferred to challenge Ext.P1 EC in this proceeding under Article 226. We notice
that an appellate remedy is specifically provided against the grant of EC as per The National Green
Tribunal Act, 2010 (for short 'the Green Tribunal Act'). The statute mentioned above provides for
the establishment of a National Green Tribunal for the effective and expeditious disposal of cases
M.K.Salim vs State Of Kerala on 13 August, 2021
Indian Kanoon - http://indiankanoon.org/doc/76210646/ 6
relating to environmental protection including enforcement of any legal right relating to the
environment. Chapter III of the Green Tribunal Act deals with jurisdiction, powers and proceedings
of the Tribunal. Section 16 provides for the appellate jurisdiction of the Tribunal.
17. Section 16(h) of the Green Tribunal Act is relevant for the instant case and the same is extracted
as below:
S.16. Any person aggrieved by,-
(h) an order made, on or after the commencement of the National Green Tribunal
Act, 2010, granting environmental clearance in the area in which any industries,
operations or processes or class of industries, operations and processes shall not be
carried out or shall be carried out subject to certain safeguards under the
Environment (Protection) Act, 1986 (29 of 1986).
............ may, within a period of 30 days from the date on which the order or decision
or direction or determination is communicated to him, prefer an appeal to the
Tribunal.
Provided that the Tribunal may, if it is satisfied that the appellant was prevented by
sufficient cause from filing the appeal within the said period, allow it to be filed under
the section within a period not exceeding 60 days.
18. A perusal of the above provision makes it clear that the legislature intended to create a specialist
body in the form of National Green Tribunal to consider the validity of orders granting or rejecting
applications for EC. The remedy of an appeal with the Tribunal under the Green Act gives power to
consider the grant in its true perspective with opportunities to consider the correctness or otherwise
of the decision in a holistic approach. It is seen from the pleadings in the case that the petitioner
became aware of Ext.P1 at least by 25-02-2019 when an email was sent to the District Collector,
complaining about the alleged illegalities and questioning the grant of the environmental clearance
certificate. The writ petition is filed only on 15-07-2019 without even invoking the appellate remedy
before the National Green Tribunal. Petitioner has not pleaded the reasons for not invoking the
statutory remedy under the Green Act. As on the date of filing the writ petition, his statutory remedy
became barred by limitation under the proviso to section 16 of the Green Tribunal Act.
19. When a statute creates a right and the remedy is also created for those aggrieved, recourse must
be made to that remedy before invoking the extraordinary and prerogative writ jurisdiction of the
High Court under Article 226 of the Constitution of India. As has been reiterated by the Supreme
Court, the normal rule is that the writ petition should not be entertained when statutory remedies
are available under the legislation concerned, unless exceptional cases are made out. Reference can
be made to Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills and Others [(2008) 13
SCC 323] and also Star Paper Mills Ltd. v. State of U.P and Others [(2006) 10 SCC 201].
M.K.Salim vs State Of Kerala on 13 August, 2021
Indian Kanoon - http://indiankanoon.org/doc/76210646/ 7
20. The appellate remedy under the Green Tribunal Act is efficacious and any person aggrieved can
prefer appeal against the grant of EC. The appellate remedy was available to the petitioner and no
reasons have been stated for bypassing the statutory appeal. Moreover, an appreciation of various
factual matters are also involved in the nature of challenge raised against Ext.P1, which could be
effectively adjudicated only in an appeal. Failure to approach the statutory authority within the
stipulated time must normally renders this writ petition as not maintainable. Though this writ
petition merits dismissal solely on the ground of non-recourse to statutory remedies, taking into
consideration the nature of this litigation and the approach adopted by the Constitutional courts in
environmental issues, we are of the view that this Court can consider the writ petition on merits. We
also bear in mind that the cause put forth in the case would be rendered otiose, if the parties are
relegated to the appellate remedy after the writ petition was admitted and kept pending on the files
of this Court for the last two years. Thus we hold that this writ petition is maintainable on the
peculiar facts of this case. While disposing this writ petition on merits by this judgment, we shall not
be understood as having made a departure from the general rule, i.e, writ petitions will not be
entertained when alternate statutory remedies are available.