HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 

 
Court No. - 1
 

 
Case :- MISC. BENCH No. - 805 of 2020
 

 
Petitioner :- Kanika Sheetgrah & Dairy Pvt. Ltd. Thru Dir. Sahdev Singh
 
Respondent :- State Of U.P. Prin.Secy. Evior.,Forest & Climate Change &Ors
 
Counsel for Petitioner :- Nandita Bharti
 
Counsel for Respondent :- C.S.C.,A.K. Verma
 

 
Hon'ble Pankaj Kumar Jaiswal,J.

Hon'ble Narendra Kumar Johari,J.

Heard Mr. Jaideep Narain Mathur, Senior Advocate, assisted by Ms. Nandita Bharti, learned counsel for the petitioner, Sri Gopal Kumar Srivastava, learned Standing Counsel for the respondent nos. 1 and 4 and Sri A.K. Verma, learned counsel for the respondent nos.2, 3 and 5.

By this writ petition under Article 226 of the Constitution of India, the petitioner is assailing the order dated 04.11.2019 passed by the Chief Environment Officer, U.P. Pollution Control Board, Lucknow (hereinafter referred to as "Board"), whereby a direction has been given by the Board for closure of the petitioner unit of Cold Storage in Jalesar District Etah and also directed the concerned officers to disconnect the electricity and water connection to the petitioner unit. The petitioner is also assailing the consequential order dated 15.11.2019, whereby the petitioner's electricity connection has been disconnected on 5.12.2019.

Learned Senior Counsel appearing on behalf of the petitioner has drawn our attention to the order dated 16.09.2019 passed by the National Green Tribunal, Principal Bench, New Delhi in Original Application No. 707 of 2019 : Kayam Singh Vs. State of Madhya Pradesh and has submitted that a complaint was lodged before the National Green Tribunal that the writ petitioner is illegally operating Cold Storage and, therefore, National Green Tribunal, vide order dated 16.09.2019 (Supra), directed the Board to look into the matter, take appropriate action in accordance with law and furnish the factual and action taken report in the matter within two months. In pursuance of the aforesaid order dated 16.09.2019, the Board, on considering the fact that 'No Objection Certificate' for running Cold Storage has not been taken by the petitioner, passed the impugned order dated 4.11.2019, directing for clsoure of the petitioner unit of Cold Storage running in Jalesar District Etah in exercise of powers vested in it under Section 31(A) of the Air (Prevention & Control of Pollution) Act, 1991 and also directing the concerned officials to disconnect the electricity and water connection of the petitioner unit. In pursuance of the aforesaid order dated 4.11.2019, the District Magistrate, vide consequential order dated 15.11.2019, directed to disconnect the electricity supply of the petitioner unit. Immediately thereafter, the electricity supply of the petitioner unit has been disconnected on 5.12.2019.

Learned Senior Counsel for the petitioner has submitted that prior to passing the impugned orders, the Board has neither issued any show cause notice nor giving any opportunity of hearing to the petitioner unit. Thus, as the impugned orders have been passed in violation of principle of natural justice, therefore, the same be quashed. To strengthen his submission, he has also placed reliance upon Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others : (1998) 8 SCC 1.

Learned Senior Counsel has drawn our attention to Annexure No.3, which is a judgment and order dated 02.12.2019 passed by this Court in writ petition No. 33214 of 2019 (M/B) : M/s Kirori Lal Cold Storage Vs. State of U.P. and others and has submitted that in an identical circumstances in the matter of M/s Kirori Lal Cold (Supra), this Court, while disposing of the writ petition, issued seven directions vide order dated 2.12.2019 (Supra), which reads as under :

"(i) The Board shall issue a show cause notice to the petitioner within one week from today.

(ii) On receipt of the show cause notice, the petitioner shall submit his reply to the Board within next one week.

(iii) On receipt of the reply to the show cause notice, the Board shall provide an opportunity of hearing to the petitioner by fixing date, time and place.

(iv) After affording opportunity of hearing to the petitioner, the Board shall pass appropriate order within next one week.

(v) The entire exercise shall be completed within three weeks from the date of receipt of a certified copy of this order.

(vi) The petitioner is at liberty to file appropriate application before the NGT. If such an application is filed by the petitioner before the NGT in Original Application No. 707 of 2019, we hope and trust that the NGT shall make an earnest endeavour to examine the issue and pass appropriate orders, in accordance with law.

(vii) As stated hereinabove, since 30000 sacks of potatoes of the farmers are stored in petitioner's cold storage and the same is a perishable item, therefore, we restrain the concerned authorities not to disconnect the electricity connection and water connection pursuant to the impugned order dated 04.11.2019 passed by the Board and the impugned consequential order dated 15.11.2019 passed by the District Magistrate, Etah, till fresh order passed by the Board as directed hereinabove."

In respect of NOC, learned counsel for the petitioner has submitted that on 3.08.2017, an application for grant of 'No Objection Certificate' in the prescribed format for running Cold Storage has been made by the petitioner but no order has been passed thereon and, thereafter, without affording opportunity of hearing, impugned order dated 4.11.2019 and the consequential impugned order dated 5.12.2019 have been passed. He has submitted that except direction no. (vii) of the order dated 02.12.2019 (Supra), the present petition be disposed of in terms of other directions of the order dated 02.12.2019 (Supra).

Per contra, learned counsel for the Board has no objection has submitted that as the connection of the petitioner unit has been disconnected, whereas the connection of the petitioner of writ petition No. 33214 of 2019 (M/B) (supra) has not been disconnected till passing the order dated 02.12.2019 (supra), therefore, except direction no. (vii) of the order dated 02.12.2019 (Supra), direction nos. (i) to (vii) will be applicable in the case of the petitioner.

Considering the aforesaid so also the fact that prior to passing the impugned order dated 04.11.2019, no opportunity of hearing has been granted to the petitioner, we, therefore, dispose of the writ petition in terms of direction nos. (i) and (vii) of the order dated 02.12.2019 and issue following directions :

(i) The Board shall issue a show cause notice to the petitioner within one week from today.

(ii) On receipt of the show cause notice, the petitioner shall submit his reply to the Board within next one week.

(iii) On receipt of the reply to the show cause notice, the Board shall provide an opportunity of hearing to the petitioner by fixing date, time and place.

(iv) After affording opportunity of hearing to the petitioner, the Board shall pass appropriate order within next one week.

(v) The entire exercise shall be completed within three weeks from the date of receipt of a certified copy of this order.

(vi) The petitioner is at liberty to file appropriate application before the NGT. If such an application is filed by the petitioner before the NGT in Original Application No. 707 of 2019, we hope and trust that the NGT shall make an earnest endeavour to examine the issue and pass appropriate orders, in accordance with law.

Order Date :- 13.1.2020 Ajit/-