904. wp 14423-18.doc

DDR

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CIVIL APPELLATE JURISDICTION
                          WRIT PETITION NO. 14423 OF 2018

       Bharatesh Construction Company               .. Petitioner
             Vs.
       Maharashtra Pollution Control
       Board & ors.                                 .. Respondents
                                    ............
       Mr. Kevic Setalwad, Senior Advocate I/b. Rajeev Talasikar for
       the petitioner.
       Mr. Jitendra Jagtap for respondent No.1 - Board.
       Ms. Nisha Mehra, AGP for State - respondent Nos. 2, 3 and 5
                                    ............

                                     CORAM : NARESH H. PATIL, CJ. &
                                             M.S. KARNIK, J.

                                     DATE    : 18th DECEMBER, 2018


       P.C. :

                        The challenge in this Petition is to the impugned

       order passed by the respondent No.1- Board on 26/11/2018.

       Learned Senior Counsel appearing for the petitioner submits

       that the show cause notice dated 16/11/2018 issued by the

       respondent No.1-Board was received by the petitioner only on

       3rd December, 2018. Learned Senior Counsel therefore submits

       that passing of the impugned order is ex-facie in breach of the


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 principles of natural justice. According to him, as the show cause

 notice is received after passing of the impugned order, neither

 the petitioner got an opportunity of filing reply to the show

 cause notice nor the petitioner was heard by the respondent

 No.1-Board as such serious prejudice is caused to the petitioner.

 On merits the petitioner has raised several issues.



 2.               Learned Counsel appearing for the respondent No.1

 - Board submits that in The Air (Prevention and Control of

 Pollution) Act, 1981 (hereinafter referred to as "the Air Act" for

 short), the Appellate authority has been prescribed by the State

 Government under Section 31 ; whereas there is a statutory

 Appellate Forum available in The Water (Prevention and Control

 of Pollution) Act, 1974 (hereinafter referred to as "the Water

 Act" for short). In his submission, the petitioner has an alternate

 efficacious remedy which the petitioner may avail. Nonetheless,

 on instructions, he submits that the respondent No.1- Board is

 willing to grant an opportunity of hearing to the petitioner.




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 3.               We have perused record and the impugned order.

 There is no disputing the statement of petitioner that they have

 not been heard as the same is not contradicted by the other side.

 It is a settled principle of natural justice that the petitioner is

 required to be heard by the respondent No.1- Board before

 passing the impugned order. Based on this ground alone, we are

 of the opinion that the matter needs to be remanded back to the

 respondent No.1 - Board.


 4.               As is evident from the impugned order, the Board

 has exercised powers under Section 33A of the Water Act and

 Section 31-A of the Air Act. As against the order passed under

 Section 33A of the Water Act for the alleged violation, the

 aggrieved person has remedy of filing an Appeal to an Appellate

 Authority constituted by the State Government. In so far as the

 remedy prescribed under Section 33B of the Water Act is

 concerned, the remedy is to file an Appeal to National Green

 Tribunal. The respondent           No.1 - Board thus exercises

 independent and distinct powers under the Water Act and the

 Air Act.

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 5.               Needless to mention that the respondent No.1-

 Board while exercising its powers under the Air Act or the Water

 Act is expected to refer to the specific violations alleged under

 the respective Acts separately and independently. The reasoning

 of the respondent No.1- Board would obviously be with

 reference to the specific violations under the said Acts. It is

 clarified that we have not expressed any opinion on merits. All

 issues and contentions are kept open.



 6.               In the facts of the case and considering the issue

 raised, we pass the following order.

                                     ORDER

(a) The impugned order dated 26/11/2018 shall be treated as show cause notice. The directions contained in the impugned order shall stand withdrawn.

(b) The petitioner shall be granted an opportunity to file its reply to the show cause notice.

904. wp 14423-18.doc

(c) The respondent No.1 - Board shall grant personal hearing to the petitioner.

(d) After hearing the parties, respondent No.1 -

Board would be entitled to pass final order on its own merits.

(e) In case the final order is adverse to the petitioner, the same shall not be implemented for a period of two weeks from the date of receipt of the said order by the petitioner.

7. Writ Petition is disposed of in the above terms.

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