Andhra Pradesh High Court – Amravati
Sree Venkateswara Bio Management … vs State Of Andhra Pradesh, on 18 August, 2025
1
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
&
* THE HON'BLE SRI JUSTICE MAHESWARA RAO
KUNCHEAM
+W.P. Nos.10643 OF 2024 & 11929 OF 2024
% 18.08.2025
W.P. Nos.10643 OF 2024
# Sree Venkateswara Bio
Management Systems, Piler
MSME Industrial Park,
Annamayya District
......Petitioner.
And:
$1. State of Andhra Pradesh, rep. by its Principal Secretary,
Department of Environment, Forest, Science and Technology,
Velagapudi, Amaravati and others ....Respondents.
W.P. Nos.11929 OF 2024
# M/s. Rayalaseema Environ
Care, Mega Industrial Park,
YSR Kadapa, rep. by its
Managing Partner Smt K. Jaya
Lakshmi
......Petitioner.
And:
$1. State of Andhra Pradesh,
rep. by its Principal
Secretary, Department of
Environment, Forest,
Science and Technology,
Velagapudi, Amaravati and
others
....Respondents.
2
!Counsel for the petitioner : Sri S.V.S.S. Siva Ram
(in both the matters)
^Counsel for the respondents : Gov., Pleader for State respondents
Standing counsel for respondent No.3.
Sri Ramachandra Rao Gurram, learned counsel
for unofficial respondent,
<Gist:
>Head Note:
? Cases referred:
1.AIR 1951 SC 230
2.2019 SCOnline All 4239
3.2024 SCC OnLine MP 3246
4.(1998) 8 SCC 1
5.(2023) 109 GSTR 402
3
HIGH COURT OF ANDHRA PRADESH
****
W.P. Nos.10643 OF 2024 & 11929 OF 2024
DATE OF JUDGMENT PRONOUNCED: .08.2025
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE MAHESWARA RAO KUNCHEAM
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the Yes/No
fair copy of the Judgment?
____________________
RAVI NATH TILHARI, J
______________________________
MAHESWARA RAO KUNCHEAM,J
4
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE MAHESWARA RAO KUNCHEAM
W.P. Nos.10643 OF 2024 & 11929 OF 2024
COMMON JUDGMENT:
per the Hon’ble Sri Justice Ravi Nath Tilhari:
Heard Sri S.V.S.S. Siva Ram, learned counsel for the
petitioner, learned Government Pleader for State respondents, Sri
Y. Soma Raju, learned Standing Counsel for the respondent-
A.P.Pollution Control Board and Sri Ramachandra Rao Gurram,
learned counsel, representing Mr. Venkat Subbaiah Pogula,
learned counsel for the unofficial respondent(s) in both the writ
petitions.
2. Writ Petition No.10643 of 2024 has been filed under Article
226 of the Constitution of India challenging the order dated
04.04.2024, passed by the 2nd respondent-the Special Chief
Secretary, Department of Environment, Forest Science and
Technology, Secretariat, Velagapudi in Appeal No.5 of 2024.
3. Writ Petition No.11929 of 2024 has been filed under Article
226 of the Constitution of India challenging the order dated
04.04.2024, passed by the 1st respondent-the Special Chief
5
Secretary, Department of Environment, Forest Science and
Technology, Secretariat, Velagapudi in Appeal No.4 of 2024.
I. Facts in W.P.No.10643 of 2024:
4. The facts as per the petitioner’s case are that the petitioner
a prospective entrepreneur intending to establish a Common Bio
Medical Waste Treatment Facility (in short C.B.W.T.F) in Chittoor
District under the name and style, M/s. Sree Venkateswara Bio
Management Services, submitted an application dated
04.10.2019 to obtain Consent for Establishment (CFE) to A.P.
Pollution Control Board-respondent No.3 (in short, the Board).
While the application was under process, the Environmental
Clearance (EC) was granted vide order dated 28.06.2021. On
19.07.2021, a letter was addressed to 3rd respondent to consider
the application for C.F.E in view of the EC granted. The 3rd
respondent issued C.F.E on 14.09.2021 to establish the
treatment facility for collection, transport, treatment and scientific
disposal of Bio-Medical Waste Generated in the health care
establishments by duly allotting Chittoor Revenue Division and
Mandapalle Revenue Division with a total bed strength of 7034.
5. The 4th respondent-AWM Consulting Limited, represented
by its Managing Director, Tirupati was also allotted a bed strength
6
of 11,002 and 289 HCFs duly satisfying the conditions of
allocation of 10,000 beds to the existing CBWT. The petitioner’s
case is that the proposed facility of the petitioner is 81 kms away
from the existing facility handled by the respondent No.4 and falls
within the zone of Annamayya District where such other facility is
not existing.
6. The 4th respondent however, made a representation dated
14.09.20221 to the 3rd respondent. Board contending that the gap
analysis report was not conducted while granting CFE to the
petitioner and that the new facility would be established within 75
kilometers radius. The actual bed strength of the respondent No.4
was only 9374. 3587 beds were inactive. The 4th respondent
contended that their facility had the capacity to accommodate
additional waste treatment and so permitting new facility was not
feasible and viable. On such representation of 4th respondent,
the 3rd respondent cancelled the petitioner’s CFE vide
cancellation order dated 27.09.2021.
7. The petitioner, being aggrieved by the cancellation order
submitted a representation dated 08.05.2023 for revocation of the
cancellation order inter alia on the grounds that, the gap analysis
study could not be the sole criteria to cancel CFE and as per the
7
report of the District Medical and Health Officer dated 21.09.2021,
the existing bed strength was 19,454, which implied that it was
crossing the statutory requirement of 10,000 beds. The
petitioner also represented about the order of the National Green
Tribunal (NGT) in O.A.No.900 of 2022 dated 15.12.2022, in M/s.
Rainbow Environment Pvt. Limited vs. State of Punjab and
others, wherein the NGT had observed that the guidelines were
to ensure effective treatment of bio medical waste for protection
of environment and public health and not merely to advance
business interest of a facility by creating monopoly.
8. Considering the submissions of the petitioner, the 3rd
respondent placed the issue before the CFE Committee meeting
DATED 18.05.2023 and with the recommendation of the said
committee, the Board cancelled, the cancellation order dated
27.09.2021, vide order dated 24.05.2023 and extended the
validity of the CFE till 30.04.2024 under Section 25 of the Water
(Prevention and Control of Pollution) Act, 1974 (in short the Water
Act) and Section 21 of Air (Prevention and Control of Pollution)
Act, 1981 (in short, the Air Act) and recommended to apply for
Consent for Operation (CFO) prior to the expiry period of CFE.
8
9. The CBWTF Association of Andhra Pradesh filed batch of
writ petitions. One of those against the petitioner, was
W.P.No.14404 of 2023 challenging the order dated 24.05.2023,
i.e cancelling the order of cancellation of CFE.
10. The batch of the writ petitions were disposed of by this
Court by common order dated 29.12.2023, the operative portion
of which reads as under:
“A perusal of the material available on records shows that
a number of factual controversies are required to be gone
into in these writ petitions. However, having regard to the
availability of alternative remedy to the writ petitioners, as
indicated supra, this court deems it appropriate to dispose of
all these writ petitions, leaving it open for the petitioners to
avail statutory appeal remedy as provided under Rule 16 of
2016 Rules, against the actions/orders impugned in these
writ petitions, within a period of ten days from the date of
receipt of a copy of this order. The writ petitioners herein are
also entitled to file necessary applications, seeking interim
reliefs, for consideration of the same by the Appellate
Authority pending appeal. It is made clear that for a period
of two weeks from today status-quo as on today with regard
to subject facilities i.e operations of Common Bio-Medical
Waster Treatment and Disposal Facilities (CBMWTF), shall
be maintained.”
11. The order dated 29.12.2023 shows that the writ petitions
were disposed of leaving it open for the petitioners of the writ
9
petitions to avail statutory remedy of appeal under the
Environment (Protection) Act, 1986 and Rule 16 of the Bio-
Medical Waste Management Rules, 2016 (in short, B.W.M Rules).
12. The 4th respondent A.W.M Consulting Limited, filed an
appeal before the 2nd respondent challenging the order dated
24.05.2023.
13. The petitioner filed counter raising the issue on the
maintainability of the appeal on the ground that the appeal was
filed after the expiry of the limitation period of 30 days prescribed
by Rule 16 of BWM Rules; as also raising other grounds and
referring to certain orders on the subject.
14. The 2nd respondent passed the order dated 04.04.2024 in
Appeal No.5 of 2024 holding that the preparation of inventory and
gap analysis as prescribed under BWM Rules and Guidelines
were mandatory and directed the 3rd respondent Board to conduct
gap analysis study in 45 days. It also held that the CFE order and
revocation of cancellation order were not a valid authorization as
per the BWM Rules, 2016 for establishment of a new BMWTF.
The appeal of the 4th respondent was disposed of with the
directions to the APPCB to take further action.
10
15. Paras 24 and 25 of the appellate order read as under:
“24. In conclusion, it is held that preparation of Inventory
and Gap analysis as prescribed in the Rules and
Guidelines are mandatorily required prior to the
establishment of a new CBWTF. As the Rules and
Guidelines were issued in 2016, the APPCB has to take
immediate action to complete the Gap Analysis study in a
period not exceeding 45 days. Wherever, there is a need
for new CBMWT facility, the Expression of Interest shall
be called for as per the Guidelines. In so far as the CFE
Order No.APPCB/BMW/TPT/CBMWTF/HO/2021, dated
14.09.2021 and revocation of cancellation order in
Lr.No.APPCB-11025/13/2019-EE1-APPCB, dated
25.04.2023 are concerned, they are valid only to the
extent of the provisions under the Water Act, 1974 and
Air Act, 1981 and are not a valid Authorization by the
prescribed authority as per the Bio-Medical Waste
Management Rules, 2016 for establishing of a new
CBMWTF.
25. Accordingly, the appeal is disposed of and APPCB shall
take further action.”
16. Challenging the appellate order dated 04.04.2024, in
Appeal No.5 of 2024 the Writ Petition No.10643 of 2024 has been
filed.
II. Facts in W.P.No.11929 of 2024:
17. In this writ petition, the petitioner M/s.Rayalaseema Environ
Care is the prospective entrepreneur intending to establish a
11
Common Bio Medical Waste Treatment facility in Kadapa District.
It had applied for CEF on 11.01.2020. The Environment
Clearance (E.C) was granted on 26.10.2021 and CEF was issued
on 24.11.2021 which after execution vide order dated 24.05.2023
was valid upto 30.04.2024. The CBWTF Association (R.3 in this
writ petition) taking shelter of the common judgment in batch of
writ petitions referred to above filed Appeal No.4 of 2024
challenging the order dated 24.05.2023, in which the impugned
order dated 04.04.2024 was passed against the petitioner. The
rest of the facts remain the same regarding the objection raised to
the maintainability of the appeal before the 2nd respondent under
Rule 16 of the Rules, 2016.
18. There being same preliminary objection raised, in both the
writ petitions, we proceed to decide the same preliminary
objection, by this common judgment, making W.P.No.10643 of
2024, the leading writ petition.
III. Submission of learned counsel for the petitioner:
19. Learned counsel for the petitioner submitted that the order
dated 24.05.2023 against which the appeal was preferred before
the 2nd respondent was not passed under the BMW Rules. It was
passed under Section 25 of the Water Act and Section 21 of the
12
Air Act. So, the 2nd respondent, the prescribed authority under
BMW Rules, was not the appellate authority.
20. Learned counsel for the petitioner further submitted that the
order dated 29.12.2023 by which the batch of the writ petitions
were disposed of could not confer the jurisdiction on the 2nd
respondent of the appellate jurisdiction. The appeal, if at all
against the order dated 24.05.2023 could be preferred before the
appellate authority constituted under Section 28 of the Water Act
and Section 31 of the Air Act. He submitted that the right to
appeal being a statutory right cannot be availed unless expressly
so conferred by a statute. Even the Superior Court could not
confer the appellate jurisdiction on an authority which was
otherwise not the statutory appellate authority. In support of the
said contention, he placed reliance in The United Commercial
Bank Limited vs. Their Workmen (and other cases) Union of
India – Intervener1 and Iron International Limited thru General
Manager vs. Deepak Yadav2, submitting further that the
appellate order passed by the 2nd respondent would be nonest,
null and void and without jurisdiction.
1
AIR 1951 SC 230
2
2019 SCOnline All 4239
13
21. He submitted that the 4th respondent could not rely on the
common order passed in the batch of writ petitions as he was not
party in those writ petitions. 4th respondent had not filed any writ
petition challenging the order in the petitioner’s case. So, the
benefit of the common order of the High Court in the batch of writ
petitions, by which it was left open to the petitioners of those writ
petitions to avail statutory remedy under BMW Rules, if such an
appeal was filed within a period of 10 days from the date of
receipt of copy of the common order, could not be available to the
4th respondent. He submitted that the 4th respondent was also
not the member of CBW Association, but was a member of one of
CBWTF Association of India, A.P. and both the entities were
different.
22. Learned counsel for the petitioner further submitted that the
Rule 16 of BMW Rules, 2016 prescribed a limitation period of 30
days for filing an appeal. The 4th respondent filed the appeal with
a delay of 298 days. Any application for condonation of delay in
filing the appeal was not preferred. He submitted that even if the
appeal was filed by the 4th respondent, and assuming for the sake
of argument to be maintainable under Rule 16 of the Rules, 2016,
14
the same being beyond the period of limitation should have been
rejected by the appellate authority on the ground of limitation.
IV. Submission of learned counsels for the respondents:
23. Learned counsels for the respondents raised a preliminary
objection that the petitioner had alternative remedy to approach
the National Green Tribunal under Sections 14 and 16 of the
National Green Tribunal Act, 2010, against the appellate order
passed under Rule 16 of the BWM Rules, 2016 and so, the writ
petition deserved to be dismissed on that ground.
24. Learned counsel for the respondents placed reliance in
Indo Water Management and Pollution Control Corporation
through Amol Mohne vs. State of Madhya Pradesh through
Principal Secretary, Department of Industrial Policy and
Investment Promotion and others3.
V. Consideration of preliminary objection:
25. We have considered the aforesaid submissions and
perused the material on record.
26. The point for consideration, therefore, at this stage is with
respect to the preliminary objection regarding the
maintainability/entertainability of the writ petition against the
3
2024 SCC OnLine MP 3246
15
appellate order dated 04.04.2024 on the ground that there is
remedy under Section 14 or/and Section 16 of the National Green
Tribunal Act before the National Green Tribunal.
VI. Consideration:
27. The contention of the petitioner’s counsel is that the
appellate authority had no jurisdiction under Rule 16 of BMW
Rules. It is infact not the appellate authority and the appellate
jurisdiction could also not be conferred by any superior Court.
So, the order passed by respondentNo.2 is without jurisdiction
and is null and void. The ground of challenge to the impugned
appellate order is on the lack of inherent jurisdiction in the
appellate authority and the order being null and void for want of
jurisdiction.
28. Another contention is that the appeal was also barred by
limitation. Any appeal filed, beyond the period of limitation, unless
it was accompanied by an application for condonation of delay or
prayer to that effect, could not be entertained by the appellate
authority. This contention also raises the point of jurisdiction in
the appellate authority to entertain the appeal beyond the period
of limitation, which prima facie was beyond the period prescribed
by rule 16 of the BWM Rules, 2016 for filing appeal and also
16
without any prayer for condonation of delay either by separate
application or in the appeal itself.
29. On the aforesaid aspect of the appeal, learned counsel for
the petitioner further raised the contention that the 4th respondent
would not get the benefit of the order passed in both the writ
petitions. Whereas the submission by the respondent’s counsel
is that 4th respondent would be entitled to such benefit, as 4th
respondent was member of the CBWIF Association. The question
therefore, requires investigation, on the basis of the material on
record is, also, if the appeal was within limitation or not. The
questions raised in our view go to the very jurisdiction of the 2nd
respondent to entertain and decide the appeal.
30. It is well settled in law that a statutory alternative remedy is
not an absolute bar to the maintainability or entertainability of the
writ petition under Article 226 of the Constitution of India. It is a
self imposed restriction and in the presence of a statutory
alternative remedy, this Court ordinarily declines to entertain the
writ petition. But, there are also well recognized exceptions to this
doctrine of exhaustion of the alternative remedy, before
approaching this Court under Article 226 of the Constitution of
17
India, one of which is the lack or want of jurisdiction in the
authority passing the order impugned in a writ petition.
31. We may refer to the case of Whirlpool Corporation vs.
Registrar of Trade Marks, Mumbai and others4, in which the
Hon’ble Apex Court held as under in paras 14 to 21:
“14.The power to issue prerogative writs under Article
226 of the Constitution is plenary in nature and is not
limited by any other provision of the Constitution. This
power can be exercised by the High Court not only for
issuing writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari for
the enforcement of any of the Fundamental Rights
contained in Part III of the Constitution but also for ” any
other purpose”.
15. Under Article 226 of the Constitution, the High
Court, having regard to the facts of the case, has a
discretion to entertain or not to entertain a writ petition.
But the High Court has imposed upon itself certain
restrictions one of which is that if an effective and
efficacious remedy is available, the High Court would
not normally exercise its jurisdiction. But the alternative
remedy has been consistently held by this Court not to
operate as a bar in at least three contingencies, namely,
where the writ petition has been filed for the
4
(1998) 8 SCC 1
18
enforcement of any of the Fundamental Rights or where
there has been a violation of the principle of natural
justice or where the order or proceedings are wholly
without jurisdiction or the vires of an Act is
challenged. There is a plethora of case-law on this point
but to cut down this circle of forensic whirlpool, we
would rely on some old decisions of the evolutionary era
of the constitutional law as they still hold the field.
16. Rashid Ahmed v. Municipal Board, Kairana [1950
SCC 221 : AIR 1950 SC 163 : 1950 SCR 566] laid down
that existence of an adequate legal remedy was a factor
to be taken into consideration in the matter of granting
writs. This was followed by another Rashid case,
namely, K.S. Rashid & Son v. Income Tax Investigation
Commission [AIR 1954 SC 207 : (1954) 25 ITR 167]
which reiterated the above proposition and held that
where alternative remedy existed, it would be a sound
exercise of discretion to refuse to interfere in a petition
under Article 226. This proposition was, however,
qualified by the significant words, “unless there are
good grounds therefor”, which indicated that alternative
remedy would not operate as an absolute bar and that
writ petition under Article 226 could still be entertained
in exceptional circumstances.
17. A specific and clear rule was laid down in State of U.P.
v. Mohd. Nooh [AIR 1958 SC 86 : 1958 SCR 595] as under:
19
“But this rule requiring the exhaustion of statutory
remedies before the writ will be granted is a rule of policy,
convenience and discretion rather than a rule of law and
instances are numerous where a writ of certiorari has
been issued in spite of the fact that the aggrieved party
had other adequate legal remedies.”
18. This proposition was considered by a Constitution
Bench of this Court in A.V. Venkateswaran, Collector of
Customs v. Ramchand Sobhraj Wadhwani [AIR 1961 SC
1506 : (1962) 1 SCR 753] and was affirmed and followed
in the following words:
“The passages in the judgments of this Court we have
extracted would indicate (1) that the two exceptions
which the learned Solicitor General formulated to the
normal rule as to the effect of the existence of an
adequate alternative remedy were by no means
exhaustive, and (2) that even beyond them a
discretion vested in the High Court to have entertained
the petition and granted the petitioner relief
notwithstanding the existence of an alternative
remedy. We need only add that the broad lines of the
general principles on which the Court should act
having been clearly laid down, their application to the
facts of each particular case must necessarily be
dependent on a variety of individual facts which must
govern the proper exercise of the discretion of the
Court, and that in a matter which is thus pre-eminently
one of discretion, it is not possible or even if it were, it
would not be desirable to lay down inflexible rules
which should be applied with rigidity in every case
which comes up before the Court.”
19. Another Constitution Bench decision in Calcutta Discount
Co. Ltd. v. ITO, Companies Distt. I [AIR 1961 SC 372 : (1961)
41 ITR 191] laid down:
“Though the writ of prohibition or certiorari will not issue
against an executive authority, the High Courts have
20power to issue in a fit case an order prohibiting an
executive authority from acting without jurisdiction.
Where such action of an executive authority acting
without jurisdiction subjects or is likely to subject a
person to lengthy proceedings and unnecessary
harassment, the High Courts will issue appropriate
orders or directions to prevent such consequences. Writ
of certiorari and prohibition can issue against the
Income Tax Officer acting without jurisdiction under
Section 34, Income Tax Act.”
20. Much water has since flown under the bridge, but
there has been no corrosive effect on these decisions
which, though old, continue to hold the field with the
result that law as to the jurisdiction of the High Court in
entertaining a writ petition under Article 226 of the
Constitution, in spite of the alternative statutory
remedies, is not affected, specially in a case where the
authority against whom the writ is filed is shown to have
had no jurisdiction or had purported to usurp jurisdiction
without any legal foundation.
21. That being so, the High Court was not justified in
dismissing the writ petition at the initial stage without
examining the contention that the show-cause notice
issued to the appellant was wholly without jurisdiction
and that the Registrar, in the circumstances of the case,
was not justified in acting as the “Tribunal”.
21
32. In Godrej Sara Lee Limited vs. Excise and Taxation
Officer-cum-Assessing Authority and others5, the Hon’ble
Apex Court reiterated that the power to issue prerogative writs
under Article 226 of the Constitution of India, is plenary in nature.
Any limitation on the exercise of such power must be traceable in
the Constitution itself. 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.
33. Paragraphs 4 to 8 of Godrej Sara Lee Limited (supra) are
reproduced 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 provided5
(2023) 109 GSTR 402
22by 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
23
requires 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.
5. A little after the dawn of the Constitution, a Constitution
Bench of this Court in its decision reported in 1958 SCR 595
(State of Uttar Pradesh vs. Mohd. Nooh) had the occasion to
observe as follows:
“10. In the next place it must be borne in mind that there is no
rule, with regard to certiorari as there is with mandamus, that it
will lie only where there is no other equally effective remedy. It
is well established that, provided the requisite grounds exist,
certiorari will lie although a right of appeal has been conferred
24by statute, (Halsbury’s Laws of England, 3rd Edn., Vol. 11, p.
130 and the cases cited there). The fact that the aggrieved
party has another and adequate remedy may be taken into
consideration by the superior court in arriving at a conclusion
as to whether it should, in exercise of its discretion, issue a writ
of certiorari to quash the proceedings and decisions of inferior
courts subordinate to it and ordinarily the superior court will
decline to interfere until the aggrieved party has exhausted his
other statutory remedies, if any. But this rule requiring the
exhaustion of statutory remedies before the writ will be granted
is a rule of policy, convenience and discretion rather than a rule
of law and instances are numerous where a writ of certiorari
has been issued in spite of the fact that the aggrieved party
had other adequate legal remedies. ***”
6. At the end of the last century, this Court in paragraph 15 of
the its decision reported in (1998) 8 SCC 1 (Whirlpool
Corporation vs. Registrar of Trade Marks, Mumbai and Others)
carved out the exceptions on the existence whereof a Writ
Court would be justified in entertaining a writ petition despite
the party approaching it not having availed the alternative
remedy provided by the statute. The same read as under:
(i) where the writ petition seeks enforcement of any of the
fundamental rights;
(ii) where there is violation of principles of natural justice;
(iii) where the order or the proceedings are wholly without
jurisdiction; or
(iv) where the vires of an Act is challenged.
25
7. Not too long ago, this Court in its decision reported in 2021
SCC OnLine SC 884 (Assistant Commissioner of State Tax vs.
M/s. Commercial Steel Limited) has reiterated the same
principles in paragraph 11.
8. That apart, we may also usefully refer to the decisions of this
Court reported in (1977) 2 SCC 724 (State of Uttar Pradesh &
ors. vs. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482
(Union of India vs. State of Haryana). What appears on a plain
reading of the former decision is that whether a certain item
falls within an entry in a sales tax statute, raises a pure
question of law and if investigation into facts is unnecessary,
the high court could entertain a writ petition in its discretion
even though the alternative remedy was not availed of; and,
unless exercise of discretion is shown to be unreasonable or
perverse, this Court would not interfere. In the latter decision,
this Court found the issue raised by the appellant to be
pristinely legal requiring determination by the high court without
putting the appellant through the mill of statutory appeals in the
hierarchy. What follows from the said decisions is that where
the controversy is a purely legal one and it does not involve
disputed questions of fact but only questions of law, then it
should be decided by the high court instead of dismissing the
writ petition on the ground of an alternative remedy being
available.”
34. We proceed to consider the submission of the respondents’
counsel based on Sections 14 and 16 of the National Green
Tribunal Act for which we shall reproduce the provisions.
26
35. Section 14 of the National Green Tribunal Act reads as
under:-
“Section 14. Tribunal to settle disputes.
(1) The Tribunal shall have the jurisdiction over all civil
cases where a substantial question relating to environment
(including enforcement of any legal right relating to
environment), is involved and such question arises out of
the implementation of the enactments specified in Schedule
I.
(2) The Tribunal shall hear the disputes arising from the
questions referred to in sub-section (1) and settle such
disputes and pass order thereon.
(3) No application for adjudication of dispute under this
section shall be entertained by the Tribunal unless it is
made within a period of six months from the date on which
the cause of action for such dispute first arose:
Provided that the Tribunal may, if it is satisfied that the
applicant was prevented by sufficient cause from filing the
application within the said period, allow it to be filed within a
further period not exceeding sixty days.
36. Section 16(g) of the National Green Tribunal Act, 2010
relevant for perusal purpose which relevant for reads as under:
“16. Tribunal to have appellate jurisdiction- Any
person aggrieved by
(a) to (f)……………………
(g) any direction issued, on or after the commencement
of the National Green Tribunal Act, 2010, under Section 5 of
the Environment (Protection) Act, 1986 (29 of 1986);
27
(h) to (j)………………
“may within a period of thirty 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 this
section within a further period not exceeding sixty days.”
37. In Indo Water Management and Pollution Control
Corporation (supra), the judgment on which learned counsels
for the respondents placed reliance the Madhya Pradesh High
Court observed that the orders as impugned therein i.e
granting consent to operate Common Bio-Medical Waste
Treatment Facility and the other restricting the area of such
operation could be assailed under Section 28 of the Water
Act, under Rule 16 of BMW, Rule 24 of HWM Rules, 2016
and thereafter before the National Green Tribunal under
Section 16 of National Green Tribunal Act.
38. Learned counsel for the respondents submitted that in
view of the aforesaid judgment in Indo water Management
and Pollution Control Corporation (supra), the National
Green Tribunal has a jurisdiction under the N.G.T Act after the
28
appellate order passed under Rule 16 of the BWM Rules,
2016. He submitted that such a remedy is under Section
16(g) of the NGT Act. A perusal of Section 16(g) as
reproduced above shows that any person aggrieved inter alia
by any direction issued on or after the commencement of the
National Green Tribunal Act and under Section 5 of the
Environment (Protection) Act as provided under Clause(g),
may within the period of 30 days from the date on which inter
alia the direction is communicated to him prefer an appeal to
the Tribunal. In the present case, the impugned appellate
order is passed under Rule 16 of the Rules, 2016, which does
not find mention under any of the clauses(a) to (j) of Section
16 of N.G.T Act. Learned counsels relied on Clause(g).
Therefore, prima facie the submission appears to be not well
founded that the remedy of appeal before N.G.T would be
available under Section 16 of the N.G.T Act.
39. The judgment of the Madhya Pradesh High Court, upon
which reliance was placed, holds, as would be evident in para
14.2, that the applicability of Section14 of the N.G.T Act was
debatable. Madhya Pradesh High court did not hold that the
29
remedy is under Section 14 of the N.G.T. Act before the
National Green Tribunal.
40. Paras 14 and 15 of Indo Water Management and
Pollution Control Corporation (supra) are reproduced as
under:
“14. Coming to National Green Tribunal Act, 2010, it is seen
from bare reading of Section 14 of NGT Act which confers
jurisdiction and power to the Tribunal that the Tribunal has
jurisdiction over all civil cases which involved substantial
question relating to environment which includes
enforcement of any legal right relating to environment and
that such substantial question arises out of implementation
of the Enactment specified in Schedule-I which are as
follows:
Schedule-I
[See sections 14(1), 15(1), 17(1)(a), 19(4)(j) and 34(1)]
1. The Water (Prevention and Control of Pollution) Act,
1974;
2. The (Prevention and Control of Pollution) Cess Act, 1977;
14.1 Whereas Section 16 of NGT Act vests NGT with
appellate jurisdiction over appellate orders passed under
various environment related Enactments including Section
28 of Water Act.
14.2 The question as to whether petitioner can raise the
issue involved herein before NGT u/S 14 of NGT Act is
debatable. However, since this Court finds that Section
16 of NGT Act is available to petitioner to be invoked after
exhausting remedy of appeal under the Water Act or the
30Rules framed thereunder and other relevant Rules, this
Court need not enter into the said debate qua Section 14 of
the NGT Act.
15. From the aforesaid discussion, what comes out loud
and clear is that orders impugned herein Annexure P/1 and
Annexure P/2 can both be assailed u/S 28 of Water Act,
under Rule 16 of BMW Rules, 2016 and under Rules 24 of
HWM Rules, 2016 and; thereafter before National Green
Tribunal u/S 16 of NGT Act.”
41. We are not observing anything with respect to the
applicability of Section 14 or Section 16 of N.G.T Act, in the
present case against the orders impugned, as even if it be taken
that the orders impugned in the present writ petition(s) are open
to be challenged before the National Green Tribunal, under the
provisions of Section 14 or/and Section 16 of the National Green
Tribunal Act, still in view of the grounds of challenge argued
before us, to the impugned orders, we are not inclined to accept
the preliminary objection that the writ petition be not maintainable
or not entertainable and to dismiss the same on the ground of
any alternative remedy. Even if the objection be correct that
there is remedy under Section 14 or Section 16 of the National
Green Tribunal Act against the appellate order passed under
Rule 16 of the Rules, 2016, that would not operate as a bar to the
entertainability of the writ petition.
31
42. The matter requires consideration as to whether the
appellate order is without jurisdiction, and whether the appeal
was within the period of limitation or beyond the limitation and
in a latter case whether the appellate authority had the
jurisdiction to decide on merits without considering the delay
aspect?.
43. Considering the grounds of challenge, we are
entertaining the writ petition, in view of the judgments in
Whirlpool Corporation (supra) and Godrej Sara Lee
Limited (supra) to consider inter alia the correctness of the
grounds inter alia on the aforesaid points of jurisdiction.
44. Since the aforesaid grounds are also the grounds of
challenge to the appellate order, it is considered not
appropriate to enter into the merits of those grounds at this
stage of deciding the preliminary objection of
maintainability/entertainability of the writ petition, without
affording opportunity of hearing to the respondents on the
merits of the impugned orders.
45. The preliminary objection raised in both the writ
petitions is over ruled.
32
46. Post on 02.09.2025.
47. In the meantime, the parties may file additional
affidavits, if any and if so required.
________________________
RAVI NATH TILHARI,J
______________________________
MAHESWARA RAO KUNCHEAM,J
Date:18.08.2025.
Note:
L.R copy to be marked.
B/o.Gk.
33
THE HON’BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON’BLE SRI JUSTICE MAHESWARA RAO KUNCHEAMW.P. Nos.10643 OF 2024 & 11929 OF 2024
Date: 18.08.2025.
Gk.
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