HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 

 
Case :- MISC. BENCH No. - 33214 of 2019
 

 
Petitioner :- M/S Kirori Lal Cold Storage Thru.Partner Vimlesh Chandra
 
Respondent :- State Of U.P.Thru.Prin.Secy.Environ.Forest & Climate Ch.&Ors
 
Counsel for Petitioner :- Nandita Bharti
 
Counsel for Respondent :- A.K.Verma,C.S.C.
 

 
Hon'ble Pankaj Kumar Jaiswal,J.

Hon'ble Alok Mathur,J.

(1) Heard Mr. Jaideep Narain Mathur, Senior Advocate, assisted by Ms. Nandita Bharti, learned counsel for the petitioner, Mr. Anand Singh, learned Standing Counsel for respondent nos. 1 and 4/State and Mr. Ashok Kumar Verma, learned counsel for the respondent nos. 2, 3 and 5.

(2) By means of this writ petition under Article 226 of the Constitution of India, the petitioner is praying for quashment of the order dated 04.11.2019 passed by the U.P. Pollution Control Board, Lucknow (hereinafter referred to as "Board"), whereby the Chief Environment Officer, Circle-IV of the Board, in exercise of powers under Section 31 (A) of the Air (Prevention & Control of Pollution) Act, 1991 (hereinafter referred to as "Air Act, 1991"), has directed for closure of the petitioner unit of cold storage in Jalesar District Etah and has also directed the concerned officers to disconnect the electricity and water connection to the petitioner Unit. The petitioner has also challenged the consequential order dated 15.11.2019 passed by the District Magistrate, Etah.

(3) Sri A.K. Verma, learned counsel for the U.P. Pollution Control Board has submitted that the petitioner has applied for license for establishment of a cold storage under U.P. Regulation of Cold Storages Act, 1976, which was rejected by the Board on 16.08.2017. Thereafter, the petitioner has applied for grant of consent to operate the cold storage, which too was rejected on 02.03.2019. But the petitioner, inspite of the aforesaid orders, started running the cold storage. In the meanwhile, one Kayam Singh has lodged a complaint before the National Green Tribunal, New Delhi (hereinafter referred to as "NGT") regarding illegal operation of cold storage at Tehsil Jalesar, District Etah, Uttar Pradesh. On the basis of the aforesaid complaint, a case has been registered as Original Application No. 707 of 2019 : Kayam Singh Vs. State of Madhya Pradesh. The NGT, vide order dated 16.9.2019, while fixing the case for further consideration on 06.12.2019, directed the Board to look into the matter and take appropriate action in accordance with law and furnish a factual action taken report in the matter within two months by e-mail.

(4) Sri Verma has submitted that pursuant to the order of the NGT dated 16.9.2019 (Supra), the Board has examined the issue and as the petitioner's cold storage comes within Taj Trapezium Zone (TTZ), therefore, impugned order dated 04.11.2019 has been passed by the Board in exercise of powers under Section 31 (A) of the Air Act, 1991 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. Thereafter, the District Magistrate, Etah has passed the consequential impugned order dated 15.11.2019 in compliance of the order dated 04.11.2019.

(5) Learned Senior Counsel appearing on behalf of the petitioner has drawn our attention to the law laid down by the Apex Court in para-41 of Tamil Nadu Pollution Control Board Vs. Sterlite Industries (I) Ltd. and others : 2019 SCC OnLine SC 221 and the judgment of a Co-ordinate Bench of this Court in Writ-C No. 10259 of 2019 : Hma Agro Indusries Ltd. Vs. State of U.P. and 2 others, decided on 31.5.2019, and has submitted that no appeal under Section 31 (A) of the Air Act, 1991 lies before the NGT. He has further submitted that the Board has passed the impugned order dated 4.11.2019 in pursuance of the order passed by the NGT dated 16.9.2019 (Supra), in which the petitioner is not the party but prior to passing the impugned order dated 04.11.2019, the Board has neither issued any show cause notice nor giving any opportunity of hearing to the petitioner unit. Thus, as the impugned order dated 04.11.2019 has 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.

(6) Learned Senior Counsel has further submitted that more than 30000 sacks of potatoes of the farmers are stored in petitioner's cold storage and the same is a perishable item, therefore, in absence of electricity supply and water supply, the stored potatoes would become rancid, causing immense loss to the farmers. He has further submitted that till today, the electricity connection and water connection of the petitioner cold storage pursuant to the impugned orders has not been disconnected.

(7) Per contra, Sri A.K. Verma, learned counsel for the Board has submitted that the Board is ready to provide opportunity of hearing to the petitioner and as the issue is pending before the NGT and, therefore, the present writ petition is not maintainable and is liable to be dismissed.

(8) Considering the aforesaid so also the law laid down by the Apex Court in Whirlpool Corporation (Supra) and Tamil Nadu Pollution Control Board as well as the fact that 30000 sacks of potatoes of the farmers are stored in petitioner's cold storage and the same is a perishable item, we pass the following order :

(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.

(9) With the aforesaid, the writ petition stands disposed of.

Order Date :- 2.12.2019 Ajit/-