Introduction:

In a recent judgment, the Punjab & Haryana High Court ruled that challenges against orders issued by the Pollution Control Board under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 (Water Act) must be directed to the National Green Tribunal (NGT) and not the High Court. This ruling came during the court’s consideration of a plea filed by M/s Sharanpal Cold Storage, located in Punjab’s Kapurthala district, which contested an order issued by the Punjab Pollution Control Board (PPCB) that sought to halt its operations due to the discharge of pollutants.

The impugned order was passed under both the Water Act and the Air (Prevention and Control of Pollution) Act, 1981 (Air Act). While orders under the Air Act are appealable before the High Court, the bench led by Chief Justice Sheel Nagu and Justice Anil Kshetarpal observed that the primary issue at hand related to the discharge of liquid effluents, thus falling predominantly under the Water Act’s jurisdiction. Consequently, the court dismissed the petition, directing the petitioner to seek remedy before the NGT.

Background of the Case:

M/s Sharanpal Cold Storage, a facility located in Punjab’s Kapurthala district, found itself at the center of a legal battle after the Punjab Pollution Control Board issued an order under Section 33A of the Water Act and Section 31A of the Air Act, directing the cold storage to cease all operations and to immediately stop discharging any pollutants from its premises. The PPCB’s order also included instructions to the Punjab State Power Corporation Limited (PSPCL) to disconnect the electricity supply to the facility, which posed a severe risk to the perishable goods stored there.

The petitioner, M/s Sharanpal Cold Storage, argued that the Pollution Control Board’s order was unjust and challenged the decision in the Punjab & Haryana High Court. The petitioner’s primary contention was that the order had been passed conjointly under both the Water Act and the Air Act, thus making it eligible for appeal in the High Court based on the Supreme Court’s decision in Tamil Nadu Pollution Control Board Vs Sterlite Industries (I) Ltd. and others, 2019 AIR (SC) 1074. In that case, the Supreme Court had ruled that where an order is passed jointly under Section 33A of the Water Act and Section 31A of the Air Act, no remedy lies except for filing a petition under Article 226 of the Constitution, as the Air Act does not prescribe an appellate remedy for such orders.

Arguments by the Petitioner (M/s Sharanpal Cold Storage):

The petitioner, represented by Advocate Sarabjit Singh Cheema, argued that the impugned order was arbitrary and disproportionate. They contended that their operations had been halted without due process and that the closure order under both the Water Act and Air Act was unjustifiable, especially considering the grave consequences of such a measure on their business.

The petitioner heavily relied on the precedent set by the Supreme Court in the Tamil Nadu Pollution Control Board case, arguing that since the order was passed conjointly under the Water Act and the Air Act, the High Court had the jurisdiction to hear the case. The petitioner claimed that the pollution control authorities had acted in an arbitrary manner without giving them a fair opportunity to rectify any alleged violations.

The petitioner also highlighted that the disconnection of electricity had led to the spoilage of food items stored in the cold storage, causing significant financial losses. They asserted that the Pollution Control Board had overstepped its authority by ordering such drastic measures without first exhausting other less severe alternatives.

Arguments by the Respondents (Punjab Pollution Control Board and Others):

On the other hand, the Punjab Pollution Control Board, represented by Standing Counsel Abhilaksh Gaind, defended its actions by asserting that the petitioner had been discharging pollutants without applying for and obtaining the mandatory “consent to operate” under the Water Act. The PPCB argued that this non-compliance with environmental laws posed a significant threat to public health and the environment, thus justifying the immediate closure of the facility.

The PPCB further contended that the primary issue at hand related to the discharge of liquid effluents, making the case essentially a matter under the Water Act. They argued that the petitioner’s reliance on the Tamil Nadu Pollution Control Board case was misplaced, as the Supreme Court’s decision was specific to circumstances where the issues under both the Water Act and Air Act were equally significant. In this case, however, the PPCB asserted that the discharge of liquid effluents clearly fell under the purview of the Water Act, and therefore, the appropriate remedy for the petitioner was to approach the National Green Tribunal (NGT) under Section 33B(c) of the Water Act.

The PPCB maintained that the High Court should not interfere in matters where a statutory alternative remedy is available, especially when the issue predominantly concerns the Water Act, which provides for such a remedy through the NGT.

Court’s Analysis and Judgment:

• Jurisdiction and Essentiality Test:

After considering the arguments from both sides, the Punjab & Haryana High Court focused on the jurisdictional aspects of the case. The bench noted that the core issue was the discharge of liquid effluents, which falls under the purview of the Water Act, 1974. The court applied the “essentiality test” to determine the dominant nature of the impugned order, concluding that the order primarily concerned the Water Act.

The bench observed that while the order had been passed under both the Water Act and the Air Act, the nature of the pollutants in question (primarily liquid effluents) made it clear that the issue was more closely aligned with the Water Act. The court further noted that the Water Act provides a specific statutory remedy under Section 33B(c), which allows affected parties to approach the NGT.

• Distinguishing the Tamil Nadu Pollution Control Board Case:

Addressing the petitioner’s reliance on the Tamil Nadu Pollution Control Board case, the court acknowledged the Supreme Court’s ruling but distinguished the current case from that precedent. The High Court pointed out that in the Tamil Nadu case, the order in question involved both air and water pollution in a manner that neither could be said to dominate the other. However, in the present case, the nature of the effluents (liquid) indicated that the matter was primarily related to water pollution, thus making the NGT the appropriate forum for redress.

The court further emphasized that the availability of a statutory remedy before the NGT precluded the High Court from exercising its jurisdiction in this matter, particularly when the issue fell squarely within the Water Act’s domain.

• Rejection of Petition and Directions:

In light of its findings, the Punjab & Haryana High Court dismissed the petition filed by M/s Sharanpal Cold Storage. The court upheld the validity of the Pollution Control Board’s order and refused to interfere, directing the petitioner to seek remedy by approaching the National Green Tribunal as provided under Section 33B(c) of the Water Act.

The bench also clarified that the High Court should ordinarily refrain from intervening in matters where the legislature has provided a specific alternative remedy, particularly in environmental cases where specialized tribunals like the NGT have been established to handle such disputes.

The court concluded by stressing the importance of adhering to the statutory framework and respecting the jurisdictional boundaries established by law. The decision underscored the High Court’s deference to the legislative intent behind the creation of the NGT, which is to serve as the primary forum for resolving environmental disputes.