HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Chief Justice's Court
 

 
Case :- WRIT - C No. - 25965 of 2012
 

 
Petitioner :- Vinay Kumar Agarwal
 
Respondent :- State Of U.P. Thru Secy. And Others
 
Petitioner Counsel :- Ramesh Kumar Ojha
 
Respondent Counsel :- C.S.C.,Dr. Hari Nath Tripathi,M.C. Chaturvedi
 

 
Hon'ble Syed Rafat Alam,Chief Justice
 
Hon'ble Vikram Nath,J.

On the oral prayer made, the learned counsel for the petitioner is permitted to implead the Regional Officer of the Pollution Contral Board, Agra as respondent no.7 in the array of the parties during the course of the day.

We have heard learned counsel for the petitioner, learned standing counsel representing the State-respondents and Sri H.N. Tripathi, learned counsel appearing for the U.P. Pollution Control Board and also perused the material on record.

In the instant petition, the petitioner has sought for quashing of the order dated dated 10.4.2012 passed by the Regional Officer, U.P. Pollution Control Board at Agra whereby the petitioner has been called upon to show cause as to why appropriate action be not taken against him for the alleged violation of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1974.

The learned counsel for the petitioner has submitted that by the impugned notice the petitioner has been unnecessarily called upon to give show cause as the petitioner is running a small business of Sweet Pumpkin (PETHA) in a locality of Agra and in that process he does not cause any air or water pollution.

Be that as it may. We are of the view that a simple show cause notice, calling upon to show cause or explain the allegations, cannot be challenged unless it is issued by an authority not vested with the jurisdiction to issue such notice. Reference may be made to a Constitution Bench judgment of the Apex Court in Calcutta Discount Co. Ltd. Vs. Income Tax Officer, Companies District Ist, Calcutta & Anr.,(AIR 1961 SC 372), wherein it has been observed as under :

"It is well settled, however, that though the writ of prohibition or certiorari will not be issued against an executive authority, the High Courts have power to issue, in a fit case, an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority, acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court, it is well settled, will issue appropriate orders or directions to prevent such consequences."

The above view has been reiterated by the Apex Court in a catena of decisions.

In the instant case, the petitioner has not challenged the jurisdiction of respondent no.7, the Regional Officer Pollution Control Board, Agra, who has issued the impugned notice. Besides that, we are of the view that where a person is called upon to show cause pursuant to a notice which is issued under the statutory provisions, the person called upon, at first instance, must show cause or place his case before the authority calling for such show cause instead of approaching this Court under Article 226 of the Constitution of India. In the instant case, the notice has been issued under the provisions contained in the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 and, thus, the same being statutory notice, it is incumbent upon the petitioner to reply the same and place his case along with the evidence to demonstrate that his alleged act is not causing any air or water pollution. Our view finds support from the judgment of the Apex Court in the State of Uttar Pradesh Vs. Brahm Datt Sharma & Anr., (AIR 1997 SC 943).

In the instant case, the petitioner instead of replying the show cause notice has rushed to this Court challenging the same mainly on the ground that the business of the petitioner is not polluting the Taj Trapezium Zone nor in the process of manufacturing of 'Petha' any air or water pollution is being caused and, therefore, sought quashing of the show cause notice which, in our view, as indicated above, cannot be interfered with unless it is prima facie shown to be without jurisdiction or the purported action is prima facie shown to be null and void.

The learned counsel for the petitioner at this stage submitted that the time for filing the show cause has since elapsed and therefore if some reasonable time is granted, he shall file the show cause which may be directed to be decided by the respondents expeditiously.

Sri H.N. Tripathi, learned counsel appearing for the U.P. Pollution Control Board fairly stated before us that in the event the petitioner files reply to the show cause notice the same shall be considered and disposed of by the newly added respondent no.7 at the earliest, after making necessary inquiry, by a speaking order.

In view of the stand taken and also looking to the facts of the case we dispose of this petition at this stage with the direction that in the event petitioner submits his show cause in response to the notice dated 10.4.2012 within two weeks from the date of issuance of certified copy of this order, the same may be examined by the newly added Respondent No.7, Regional Officer, Pollution Control Board, Agra and appropriate decision shall be taken by him in accordance with law expeditiously preferably within a period of four weeks from the date of filing of such show cause along with certified copy of this order.

We have not expressed any opinion on the merits of the case and it is open to the respondents to examine the facts and after making necessary inquiry pass appropriate orders in accordance with law.

The petition stands disposed of with the above direction.

Order Date :- 24.5.2012 pk (Vikram Nath, J)    (S.R. Alam, C.J.)