HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 10
 
Case :- MISC. BENCH No. - 7551 of 2020
 
Petitioner :- M/S M.D. Hide Traders, Mooradabad Thru. Prop. Mohd. Dilnawaz
 
Respondent :- Uttar Pradesh Pollution Controal Board, Lucknow & Anr.
 
Counsel for Petitioner :- Mohd. Aslam Khan,Jalaj Kumar Gupta
 
Counsel for Respondent :- A.K. Verma
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Narendra Kumar Johari,J.

Heard Shri Jalaj Kumar Gupta, learned counsel for the petitioner and Shri Ashok Kumar Verma, representing U.P. Pollution Control Board.

Challenge in this writ petition has been made to the demand notice/order issued by the respondents, dated 7th February, 2020, whereby the environmental compensation has been levied on the petitioner for alleged violation of provisions of the Air (Prevention and Control of Pollution) Act, 1981 (herein after referred to as "the Act, 1981"). By the impugned order, the petitioner-Unit, which is engaged in storage of dried salted raw hides has also been ordered to be closed down.

It has been submitted by learned counsel for the petitioner that the impugned order, so far as it levies environmental compensation, is without jurisdiction, inasmuch as, such order is not referable to any statutory provision contained in the Act, 1981. He has further argued that before passing the impugned order by which environmental compensation has been levied, no notice of any sort was given to the petitioner, neither was the petitioner given any opportunity of being heard and, hence, the impugned demand notice/order is absolutely bad in law for violation of observance of principles of natural justice.

Shri Ashok Kumar Verma, learned counsel representing the U.P. Pollution Control Board, on the other hand has submitted that the impugned order is referable to Section 31A of the Act, 1981, which empowers the U.P. Pollution Control Board to issue any direction to any person/officer or authority and such person/officer or authority is bound to comply with such direction. He has also pointed out that in view of the availability of alternative remedy under Section 31 of the Act, 1981, of filing appeal against the order impugned herein, this petition would not be maintainable.

On a specific query being put to the learned counsel representing the U.P. Pollution Control Board as to whether before passing the impugned demand notice/order levying environmental compensation any notice was issued to the petitioner or any opportunity of hearing was provided, Shri Ashok Kumar Verma has stated that as per the instructions, opportunity of hearing was not provided to the petitioner, neither was any notice issued for the reason that in another proceedings drawn under Section 133 of the Code of Criminal Procedure, petitioner had agreed to close down his unit/godown.

Considering the issue raised by the learned counsel representing the U.P. Pollution Control Board about the availability of alternative remedy of appeal under Section 31 of the Act, 1981, we may only observe that availability of an alternative remedy is not an absolute bar for this Court to entertain writ petition under Section 226 of the Constitution of India. In the case of Whirlpool Corporation Vs. Registrar of Trade Marks & others, 1998 (8) SCC 1, the Hon'ble Apex Court has held that in case of non observance of principles of natural justice a writ petition under Section 226 of the Constitution of India can be entertained in the facts of the case, even in the face of availability of an alternative remedy. Since, in this case, it has been admitted by learned counsel appearing for U.P. Pollution Control Board that before issuance of impugned demand notice/order opportunity of hearing to the petitioner was not provided, hence we overrule the objection raised by Shri Ashok Kumar Verma, learned counsel representing the U.P. Pollution Control Board regarding non maintainability of the writ petition.

Shri Jalaj Kumar Gupta, learned counsel for the petitioner has also submitted that power to give direction as contemplated under Section 31A of the Act, 1981 would not encompass in its bold power to levy environmental compensation for the reason that explanation appended to Section 31A of the Act, 1981, clears the doubt and declares that power to issue direction under such provision shall include the power to direct closure, prohibition or regulation, operation or process of any industry or stoppage or regulation of supply of electricity, water or any other service. Learned counsel for the petitioner thus submitted that power to give direction under Section 31A of the Act, 1981 should, therefore, be confined for the purpose given in the explanation appended to Section 31A of the Act and it cannot travel beyond that.

Having heard the learned counsel representing the respective parties, what we notice, which fact has even been admitted by the learned counsel for the U.P. Pollution Control Board, is that before passing the impugned notice/order, which is contained in Annexure No.1 appended to the writ petition, neither any opportunity of hearing was provided to the petitioner, nor any notice was issued to him. The alleged admission made by the petitioner in the proceedings drawn under Section 133 Cr.P.C. is confined to the consent of the petitioner to close down the Godown and not for making payment of any environmental compensation. This view of the submission made by learned counsel for the U.P. Pollution Control Board merits rejection, which is hereby rejected.

In view of the discussion made herein above, it is explicit that the impugned notice/order has been issued in flagrant violation of principle of natural justice and as such are bad.

Accordingly, the impugned order/notice dated 07.02.2020, which has been annexed as Annexure No.1 to the writ petition, is hereby quashed to the extent it orders levying of environmental compensation upon the petitioner. So far as the direction to close the godown/activity by the petitioner vide impugned orders is concerned, it has been stated by the learned counsel for the petitioner himself that the godown has already been closed.

It is further directed that it will be open for the U.P. Pollution Control Board to take appropriate decision afresh only after giving opportunity of hearing to the petitioner in the matter relating to levying of environmental compensation. It is further directed that in case petitioner raises objection about power to levy environmental compensation under Section 31A of the Act, 1981, the same also be considered by the appropriate authority of the U.P. Pollution Control Board.

With the aforesaid observation and direction, the writ petition is finally disposed of.

Order Date :- 16.6.2020 ML/-