IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR

(1) S.B. Civil Writ Petition No.7729/2016
M/s Jai Balaji Industries
vs. 
Rajasthan State Pollution Control Board & Ors.
(2) S.B. Civil Writ Petition No.7758/2016
M/s Green Energy International 
vs. 
Rajasthan State Pollution Control Board & Ors.
(3) S.B. Civil Writ Petition No.7759/2016
M/s Ashkem Enterprises (India) Pvt. Limited & Anr.
vs. 
Rajasthan State Pollution Control Board & Ors.
(4) S.B. Civil Writ Petition No.7760/2016
M/s Krishnam Green Energy
vs. 
Rajasthan State Pollution Control Board & Ors.

Date of Judgment-::-19th July, 2016

HON'BLE MR. JUSTICE ALOK SHARMA

Mr. Prateek Kasliwal, for petitioners.
Mr. Akhil Simlote, for respondents.

By the Court:-

The aforesaid four writ petitions are substantially identical and hence being disposed of by this common judgment. S.B. Civil Writ Petition No.7729/2016 (M/s Jai Balaji Industries versus Rajasthan State Pollution Control Board & Ors.) is being taken as the lead case and facts therein will be adverted to. The judgment shall apply to all connected cases.

Under challenge is the impugned order dated 30.05.2016 passed by the Rajasthan State Pollution Control Board, Jaipur (hereinafter 'the Board') refusing consent to operate under the provisions of Air (Prevention and Control of Pollution Act) 1981 (hereinafter 'the Act of 1981') and under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter 'the Act of 1974') to the petitioner's industry pursuant to its application filed on 16.02.2016.

Mr. Prateek Kasliwal appearing for the petitioner has submitted that albeit an alternative remedy of an appeal against an order of refusal of consent to operate under the Acts of 1981 and 1974 is available, yet the impugned order dated 30.05.2016 has been passed in blatant denial of principle of natural justice and hence the petition be entertained. It has been submitted that letter dated 20.05.2016 was received from the Regional Office of the Board requiring the petitioner-firm to submit documents in support within 15 days in respect of its application for consent to operate. The reply with clarification and supporting document was filed on 03.06.2016 within 15 days. However, the impugned order dated 30.05.2016, rejecting the application for consent to operate has been peremptorily passed prior to the expiry of time under the letter dated 20.05.2016. This counsel submitted, entailed non consideration of petitioner's clarification/case by the Pollution Control department. It was further submitted that an inspection of the petitioner's industry was conducted by the officers' of the Board on 11.04.2016 and even the said inspection is not reflected in the impugned order dated 30.05.2016 evidencing complete non application of mind and fairness which is also a facet of the principles of natural justice. Counsel relied on the judgment of the Apex Court in the case of Whirlpool Corporation versus Registrar Of Trade Marks, Mumbai And Others, [(1998) 8 SCC page 1, and submitted that the principle of natural justice having been denied, availability of the alternative statutory remedy should not obstruct grant of relief by this Court in the exercise of its jurisdiction under Article 226 of the Constitution of India.

Mr. Akhil Simlote appearing for the respondent- pollution department submitted that the petitioner was issued a show cause notice of the intended refusal of consent to operate and the proposed directions on 09.03.2016. The petitioner submitted its reply to the show cause notice on 28.03.2016 without any supporting document/photographsand it was found to be unsatisfactory as the petitioner's tyre pyrolysis units situate in RICCO Industrial Area, Bagru were causing unacceptable pollution. In the circumstances the impugned order dated 30.05.2016 refusing consent to operate was passed both under the Acts of 1981 and 1974. Counsel submitted that the letter dated 20.05.2016 on which the entire case of the petitioner is based, is a computer generated document and not signed by any officer of the Board. It was superfluous, and accidentally communicated to the petitioner. A decision had already been taken prior thereto at the Regional Office to refuse consent to operate and issue requisite consequential directions. And the file had been sent to the Head Office for passing of the necessary orders. It was submitted that the letter dated 20.05.2016 being unsigned the petitioner ought to have ignored it and cannot cynically make capital of the said letter for impugning the otherwise well considered and valid order dated 30.05.2016 refusing consent to operate on the ground of it being in violation of the principles of natural justice. It was submitted that no prejudice has been caused to the petitioner in the circumstances, as his case set up in defence under its clarification dated 28.06.2016 has been fairly considered. Even the purported inspection dated 11.04.2016 was of no avail to the petitioner as even therein the petitioner was found non compliant with pollution standards and unfit for grant of consent to operate. Mr. Simlote further submitted that the careless error in the dispatch of the computer generated letter dated 20.05.2016 to petitioner is being addressed by the department and a show cause notice under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules 1958 has been issued to the Regional officer, for his negligence.

Heard. Considered.

It cannot and has not been denied that the letter dated 20.05.2016 from the regional office of the Board were sent to the petitioner on 20.05.2016. The said letter allowed the petitioner 15 days time to submit his clarification, albeit on an earlier notice dated 09.03.2016, the petitioner had already submitted clarification on 28.06.2016. Be as it may, the petitioner having been granted 15 days time pursuant to the letter dated 20.05.2016, the impugned order refusing consent to operate was passed within 10 days, on 30.05.2016. In the circumstances the petitioner's reply with requisite clarification dated 03.06.2016 could not be considered. Aside of the aforesaid, an inspection of the petitioner industry was admittedly conducted on 11.04.2016. The said report is also not reflected in the impugned order dated 30.05.2016. In the circumstances, contravention of the principle of natural justice is indeed made out. The Apex Court in case of Whirlpool Corporation (supra) has held that when principles of natural justice are contravened even an alternative statutory remedy being available, cannot entail ousting the equitable jurisdiction of this Court under Article 226 of the Constitution of India.

Consequently, I would set-aside the impugned order/s dated 30.05.2016 (01.06.2016 in SBCWP No.7759/2016) refusing consent to operate to the petitioner firm's/industry's. The respondent-Board is directed to reconsider the case of the petitioner firm for grant of permit to consent to operate, interalia with reference to the petitioner reply to the letter dated 20.05.2016 filed on 03.06.2016 as also the inspection of 11.04.2016 of the petitioner's industry. An order afresh on the petitioner's application for consent to operate be passed in accordance with law within a period of 10 days from the date of presentation of a certified copy of this order.

The petitions stand allowed accordingly.

A copy of this order be placed in each of the connected petition.

(ALOK SHARMA), J.

R.Vaishnav 138, 119,120,121