HIGH COURT OF JAMMU AND KASHMIR
                 AT JAMMU

OWP No. 535/2015
MP No. 01/2015

                                                Date of decision: 11.09.2017
Om Parkash Kotwal                         vs.        State of J&K and others
Coram:
               Hon'ble Mr. Justice Janak Raj Kotwal, Judge
Appearance:

For the appellant/petitioner(s) :    Mr. Pankaj Jamwal, Adv.
For the respondent(s):               Mr. Ahtsham Bhat, GA

   i.          Whether approved for
               reporting in Press/Media     : Yes/No
   ii.         Whether to be reported in
               Digest/Journal               : Yes/No

1. Petitioner has set up a poultry farm under the name and style as M/S Kotwal Poultry Farm in his land at village, Gurah Brahmana, Bantalab, Jammu. He claims that he is running this poultry farm since 1996. The Chairman, State Pollution Control Board, Jammu, herein respondent No. 2 (for short the Board) vide his order No. 234 dated 24.12.2014 issued in exercise of the power vested in the Board under section 31-A of the Air (Prevention and Control of Pollution) Act, 1981 (for short the Air Act) has ordered immediate closure of the poultry farm of the petitioner. The reasons for which the closure of the poultry OWP No. 535/2015 Page 1 of 8 farm has been ordered are that the same has been set up without prior consent of the Pollution Control Board warranted under Sections 25/26 of the Water (Prevention and Control of Pollution) Act, 1974 (for short the Water Act) and Section 21 the Air Act and the unit holder has failed to show any response to the notices issued by the Board, besides failing to take measures to meet the requirements of laws governing environmental protection. The order passed by respondent No. 2 also shows that local residents of the area have complained against operation of the said poultry farm for causing air pollution in the area.

2. The order No. 234 (supra) is challenged by the petitioner in this writ petition. He seeks quashing of the said order and a direction to the respondents not to interfere of the poultry farm.

3. Heard learned counsel on both sides and perused the record.

4. The case set up by the petitioner is that notice No. 1116-

18/SPCB/rd-j/Compt./N-11/14 dated 01.04.2014 issued to him by the Board was replied by him on 20.05.2014 against the proper acknowledgement receipt bearing No. 3375 and OWP No. 535/2015 Page 2 of 8 all the queries made to him were addressed in detail. Petitioner has produced a copy of reply filed by him as annexure-A-2 bearing the endorsement in regard to its receipt under No. 3353 dated 20.05.2014. It is alleged by the petitioner that no proceedings in the matter were held after submission of the reply by him till 25.02.2015 when a Revenue Officer visited the spot and orally directed him not to proceed with the business of the said poultry farm. After a brief spell of time when he was suffering from bad health, he approached the office of the Board at Jammu on 28.03.2015 with an application, which was accepted by respondent No. 3 on 04.04.2015 against a proper receipt.

5. Petitioner challenges the impugned order on the ground that the same has been issued without considering the reply of the petitioner in contravention of the principles of natural justice. It is contended also that the poultry farm of the petitioner does not come within the purview of the Air Act and there is no discharge of sewage or trade effluent into any stream or well or sewer or land in the near vicinity so the Water Act too is not attracted. The impugned order is challenged also on the ground that no sample was ever taken from the petitioner's poultry farm and the order is devoid of any investigation or finding recorded after OWP No. 535/2015 Page 3 of 8 investigation. The order is challenged also on the ground that the same does not disclose that the poultry farm is located in an air pollution control area or that a poultry farm comes within the ambit of "industry" under section 21 of the Air Act. It is alleged by the petitioner that the impugned order dated 24.12.2014 was served on him on 06.04.2015 when respondent No. 3 provided him a photocopy of the said order. It is contended by the petitioner also that his poultry farm has been made non functional in spite of being fully equipped in accordance with norms prescribed for running a poultry farm. In order to justify filing the writ petition in this Court, it is contended by the petitioner that the appellate authority under the Act is non functional as there is no presiding officer of the said authority. Petitioner has, therefore, sought setting aside the impugned order dated 24.12.2014 as also quashing of the consequential directions issued to the Deputy Commissioner/District Magistrate, Chief Engineer, Electric and Maintenance and Director Industries and Commerce for closing the poultry farm, snapping its electric connection and deregistration of the same. In alternative, petitioner has sought direction to the respondents (authorities) to grant fresh consent for running for said poultry farm.

6. The submissions of learned counsel for the petitioner were three fold. Firstly and primarily, that the impugned order has been passed by the Board in complete disregard to his reply to the show cause notice dated 01.04.2014, which was submitted in the office of the Board by the petitioner on 20.05.2014 and therefore, violates principles of natural justice. Secondly, that a poultry farm does not fall within the ambit of the 'industrial plant' as envisaged under section 21 of the Air Act and thirdly, that the poultry farm in question is not located in "air pollution control area".

7. Objections on behalf of the official respondents have not been filed. Learned Government Advocate, Mr. Ahtsham Bhat appearing on behalf of the official respondents, however, opposed the writ petition. Mr. Bhat submitted that a poultry farm emits air pollutant into the atmosphere so it is covered within the definition of "industrial plant'' as defined under section 2(k) of the Air Act and that it is not denied by the petitioner that his poultry farm is located in residential area, which is "air pollution control area."

8. The impugned order records that the unit holder (that is, the petitioner) was served with repeated notices, in particular OWP No. 535/2015 Page 5 of 8 notice dated 01.04.2014, calling upon him to show reason as to why legal action including closure of his unit be not taken but the unit holder failed to show any response to these notices. As against this, petitioner has produced copy of his reply to the notice dated 01.04.2014, which supports an acknowledgement stamp showing that the reply was received in the office of the Board against receipt No. 3353 dated 20.05.2014. In his reply, the petitioner has given various reasons against closure of the poultry farm set up by him.

9. The impugned order has been issued on 24.12.2014, that is, more than eight months after issuance of the notice dated 01.04.2014 and seven months after receipt of reply in the office of the Board on 20.05.2014. In absence of any response on behalf of the official respondents, the plea of the petitioner that reply to the show cause notice was delivered by him in the office of the Board on 20.05.2014 deserves to be accepted and it is to be held that the impugned order has been issued without according consideration to the reply to the show cause notice furnished by the petitioner. The impugned order, therefore, OWP No. 535/2015 Page 6 of 8 infracts the principle of audi alteram partem and this petition deserves to be granted on that score only.

10. For the aforementioned, this petition is allowed by providing that the impugned order dated 24.12.2014 and all the consequential orders shall remain in abeyance. In addition, following directions are issued:

a) Petitioner shall appear before the Chairman of the Board, respondent No. 2, within a week's time hereafter and provide a copy of this order to respondent against receipt.

b) Respondent No. 2 shall accord fresh consideration to the matter on the basis of the notice dated 01.04.2014 and petitioner's reply dated 20.05.2014 after providing opportunity of hearing to the petitioner and similar opportunity to respondent No. 4, that is, Bhag Singh Kotwal, who claims to be President of Welfare and Betterment Committee, residents of Ganga Nagar, Sec. 3 (Gurha Brahmana, Bantalab, Jammu) to whom notice shall be issued by respondent No. 2. It shall, however, be open for the parties to take OWP No. 535/2015 Page 7 of 8 into consideration change in circumstances, if any, after the date of the notice.

c) Respondent No. 2 shall conclude the proceedings and pass appropriate order according to law/rules within four weeks after copy of this order is produced in his office by the petitioner, also having regard to the plea raised on behalf of the petitioner that poultry farm is not 'industrial plant' and that the poultry farm of the petitioner is not located in "air pollution control area."

d) In case petitioner fails to produce a copy of this order in the office of respondent No. 2 within stipulated time, the impugned dated 24.12.2014 shall be executed.

11. Disposed of.

(Janak Raj Kotwal) Judge Jammu:

11.09.2017 Rakesh OWP No. 535/2015 Page 8 of 8