IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

             Writ Petition (M/S) No.2989 of 2016

Ish Medicos Private Limited                   .........Petitioner

                          Versus

State of Uttarakhand & another               ........Respondents


Present:-   Mr. Sumit Bajaj, Advocate for the petitioner.
            Mr.   P.C.   Bisht,    Standing    Counsel    for the
            State/respondent no. 1.
            Mr. Shiv Pandey, Advocate holding brief of Mr. Aman
            Rab, Advocate for respondent no. 2.



Hon'ble Sudhanshu Dhulia, J. (Oral)

The petitioner is challenging the order dated 26.10.2016, passed by the Uttarakhand Environment Protection and Pollution Control Board, which has been admittedly passed under Section 33-A of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981.

2. Learned counsel for respondent no. 2 submits that this order is appealable before the National Green Tribunal under Section 16(c) of the National Green Tribunal Act as well as Section 33-B of the Water (Prevention and Control of Pollution) Act. The aforesaid provisions read as under:-

"Section 16. Tribunal to have appellate jurisdiction.- Any person aggrieved by, -

(a)..................

(b).................

(c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board, under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);"

"Section 33-B. Appeal to National Green Tribunal.- Any person aggrieved by,-

(a) ............

(b) ...........

(c) directions issued under Section 33-A by a board, on or after the commencement of the National Green Tribunal Act, 2010, May file an appeal to the National Green Tribunal established under Section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.)"

3. On the other hand, learned counsel for the petitioner relies upon Section 21(4) of the Air (Prevention and Control of Pollution) Act, 1981, which reads as under:-

"Section 21. Restrictions on use of certain industrial plants.-

(1)......................

(2......................

(3)....................

(4) Within a period of four months after the receipt of the application for consent referred to in sub- section (1), the State Board shall, by order in writing (and for reasons to be recorded in the order, grant the consent applied for subject to such conditions and for such period as may be specified in the order, or refuse such consent): Provided further that before cancelling a consent or refusing a further consent under the first proviso, a reasonable opportunity of being heard shall be given to the person concerned.)"

4. Petitioner would hence argue that the impugned order has been passed without opportunity of hearing to the petitioner. On this, however, the reply of the learned counsel for respondent no. 2 would be that the said provision will not come into operation, inasmuch as, it is an admitted case that on the date when the impugned order was passed, there was no consent of the Uttarakhand Environment Protection and Pollution Control Board in favour of the petitioner. Hence, this is not a case of cancellation of the consent. Further the 3 impugned order clearly shows that the inspection of the petitioner's unit was made on 08.09.2016 in presence of the officials of the petitioner's company, wherein it was found as under:

"Unit is in operation without obtaining Air-Water consent of the Board since 2007. During inspection, the representative of the Unit did not show any document related to establishment and consent obtained from the other departments.

Unit has established Effluent Treatment Plant (ETP) but during inspection, the ETP not found in operation.

Unit comes under orange category. The representative of Unit did not submit copy of Environment Clearance.

Unit has not made proper arrangement for management and handling of hazardous wastes."

5. Considering the fact that the petitioner has an alternative remedy to approach before the National Green Tribunal, the writ petition stands dismissed on the ground of alternative remedy.

6. Let a certified copy of this order be issued within a period of twenty-four hours on payment of usual charges.

(Sudhanshu Dhulia, J.) 09.11.2016 Ankit