Allahabad High Court · 2025

1. The petitioner has assailed two orders of the even date i.e., 19.02.2024. The first one is a closure order for closure of the mining unit of the petitioner and the second one is for imposing environmental compensation. The submission is that the petitioner had submitted a detailed reply in pursuance of the show cause notice but there is absolutely no consideration of the reply submitted by the petitioner except for an observation that the reply was not satisfactory. It is urged that specific submissions made by the petitioner in response to show cause notice, having not been considered, the order is illegal, being in breach of principles of natural justice.

2. It is submitted that in identical facts and circumstances where similar orders of same date by the same Authority were under challenge, this Hon'ble Court by order dated 03.12.2024 has allowed the writ petitions, leading one being Writ C No. 38429 of 2024 and the matter has been remitted back to the Authority for a fresh consideration. It is urged that similar order be passed in the instant case as well.

3. The operative part of the order dated 03.12.2024 passed in the aforesaid writ petitions is as follows: "12. In view of the above discussion, the petitions succeed and are allowed.

13. The closure orders dated 19.02.2024 and the consequential orders imposing environmental compensation are hereby quashed.

14. The petitioners shall be provided with copy of the inspection report along with other material on which the respondents seek to reply upon within a period one week from today. The petitioners shall have two weeks to reply to the same. Thereafter, the Authority will pass fresh order within next two weeks.

15. The issue as to whether the Board has power to impose environmental compensation is left open for being decided in appropriate proceedings, if the occasion so arises."

4. Sri J.N. Maurya, learned counsel appearing on behalf of respondents no.4 and 5 does not dispute that the facts of the instant case are similar and that similar orders were under challenge in the aforesaid batch of the petitions. He however, submits that before NGT O.A. No. 417 of 2024 was registered against the petitioner for the same violations. Therein, the petitioner sought liberty to challenge the closure order by filing appeal before the Competent Authority. In such circumstances, the petitioner should avail the remedy of appeal and the writ petition should not be entertained.

5. On the other hand, learned counsel for the petitioner submits that the petitioner while seeking liberty before the NGT to avail the remedy of appeal to challenge the closure order did not give up the right to approach this Court under Article 226, a remedy provided to the petitioner under the Constitution. The said submission was made to impress upon the Tribunal that the closure order should not be treated to be final and the directions issued by the Tribunal be made subject to the outcome of the remedies available to the petitioner against the closure order.

6. We have considered the rival submissions. It is not in dispute between the parties that in similar facts and circumstances, orders of the same date 19.02.2024 were quashed on the ground of non-application of mind to the reply/explanation submitted in response to show cause notices and also for the reasons of violation of principles of natural justice.

7. In the instant case also, we find that the explanation has been rejected with the observation that the same has not been found to be satisfactory. There is no consideration of the actual explanation offered and therefore, in our considered opinion, the mere observation in the impugned order that the explanation was not satisfactory does not amount to consideration of the explanation offered. It has resulted in violation of the principles of natural justice.

8. The issue which still remains to be considered is whether even after having found the impugned closure order has to be violative of the principles of natural justice, this Court should entertain challenge under Article 226 of the Constitution or not. It is settled law that in case there is violation of principles of natural justice, the alternative remedy is not an absolute bar to entertain the challenge.

9. The NGT in its order dated 11.07.2024 in O.A. 417 of 2024 has noted the submissions made on behalf of the petitioner as under: "10. Learned counsel appearing for respondent 1 did not dispute about above orders. It is also stated that respondent 1 has statutory remedy of Appeal against closure order as well as order imposing environmental compensation. Tribunal may leave it open to respondent 1 to avail such statutory remedy in accordance with law since punitive and prohibitive action has already been taken by UPPCB by issuing closure order dated 19.02.2024 and by imposing environmental compensation for past violations.

11. We find that no further order may be necessary in view of above developments except of observing that District Magistrate, Mirzapur and Senior Superintendent of Police, Mirzapur shall ensure compliance of closure order until and unless any further order otherwise is passed by Competent Authority.

12. We also make it clear that this order shall not prejudice the statutory remedy available to respondent 1 against closure order as also order imposing environmental compensation and if any such remedy is availed, we hope and trust that the same shall be dealt with in accordance with law without being influenced by any observations made by this Tribunal in the present proceedings."

10. It is evident from the submission as noted in the order of the Tribunal that before the Tribunal, the case of the petitioner was that the order of closure passed by the U.P. Polution Control Board should not be treated to be final and binding but should be made subject to the final outcome of the challenge as may be made by the petitioner. The emphasis was on the fact that the closure order had not attained finality but remedy of appeal was available to the petitioner. In the same context, the Tribunal made observation that the closure order would not come in the way of the petitioner in challenging the same before the statutory forum. This would not mean that the petitioner had given up its right to challenge the order by way of writ proceedings even when the said order was passed in violation of principles of natural justice.

11. Therefore, we are of the considered opinion that the submission made on behalf of the petitioner before the NGT could not be read as waiver of the constitutional remedy under Article 226 of the Constitution.

12. Thus, we have no hesitation in entertaining the challenge. The impugned orders are accordingly quashed and the writ petition stands disposed of in terms of the order passed in similar facts and circumstances in Writ C No. 38429 of 2024 and other connected matters as extracted above. Order Date :- 28.4.2025 Ashish Pd. (Anish Kumar Gupta,J.) (Manoj Kumar Gupta,J.) ASHISH PRASAD High Court of Judicature at Allahabad

1. The petitioner has assailed two orders of the even date i.e., 19.02.2024. The first one is a closure order for closure of the mining unit of the petitioner and the second one is for imposing environmental compensation. The submission is that the petitioner had submitted a detailed reply in pursuance of the show cause notice but there is absolutely no consideration of the reply submitted by the petitioner except for an observation that the reply was not satisfactory. It is urged that specific submissions made by the petitioner in response to show cause notice, having not been considered, the order is illegal, being in breach of principles of natural justice.

2. It is submitted that in identical facts and circumstances where similar orders of same date by the same Authority were under challenge, this Hon'ble Court by order dated 03.12.2024 has allowed the writ petitions, leading one being Writ C No. 38429 of 2024 and the matter has been remitted back to the Authority for a fresh consideration. It is urged that similar order be passed in the instant case as well.

3. The operative part of the order dated 03.12.2024 passed in the aforesaid writ petitions is as follows: "12. In view of the above discussion, the petitions succeed and are allowed.

13. The closure orders dated 19.02.2024 and the consequential orders imposing environmental compensation are hereby quashed.

14. The petitioners shall be provided with copy of the inspection report along with other material on which the respondents seek to reply upon within a period one week from today. The petitioners shall have two weeks to reply to the same. Thereafter, the Authority will pass fresh order within next two weeks.

15. The issue as to whether the Board has power to impose environmental compensation is left open for being decided in appropriate proceedings, if the occasion so arises."

4. Sri J.N. Maurya, learned counsel appearing on behalf of respondents no.4 and 5 does not dispute that the facts of the instant case are similar and that similar orders were under challenge in the aforesaid batch of the petitions. He however, submits that before NGT O.A. No. 417 of 2024 was registered against the petitioner for the same violations. Therein, the petitioner sought liberty to challenge the closure order by filing appeal before the Competent Authority. In such circumstances, the petitioner should avail the remedy of appeal and the writ petition should not be entertained.

5. On the other hand, learned counsel for the petitioner submits that the petitioner while seeking liberty before the NGT to avail the remedy of appeal to challenge the closure order did not give up the right to approach this Court under Article 226, a remedy provided to the petitioner under the Constitution. The said submission was made to impress upon the Tribunal that the closure order should not be treated to be final and the directions issued by the Tribunal be made subject to the outcome of the remedies available to the petitioner against the closure order.

6. We have considered the rival submissions. It is not in dispute between the parties that in similar facts and circumstances, orders of the same date 19.02.2024 were quashed on the ground of non-application of mind to the reply/explanation submitted in response to show cause notices and also for the reasons of violation of principles of natural justice.

7. In the instant case also, we find that the explanation has been rejected with the observation that the same has not been found to be satisfactory. There is no consideration of the actual explanation offered and therefore, in our considered opinion, the mere observation in the impugned order that the explanation was not satisfactory does not amount to consideration of the explanation offered. It has resulted in violation of the principles of natural justice.

8. The issue which still remains to be considered is whether even after having found the impugned closure order has to be violative of the principles of natural justice, this Court should entertain challenge under Article 226 of the Constitution or not. It is settled law that in case there is violation of principles of natural justice, the alternative remedy is not an absolute bar to entertain the challenge.

9. The NGT in its order dated 11.07.2024 in O.A. 417 of 2024 has noted the submissions made on behalf of the petitioner as under: "10. Learned counsel appearing for respondent 1 did not dispute about above orders. It is also stated that respondent 1 has statutory remedy of Appeal against closure order as well as order imposing environmental compensation. Tribunal may leave it open to respondent 1 to avail such statutory remedy in accordance with law since punitive and prohibitive action has already been taken by UPPCB by issuing closure order dated 19.02.2024 and by imposing environmental compensation for past violations.

11. We find that no further order may be necessary in view of above developments except of observing that District Magistrate, Mirzapur and Senior Superintendent of Police, Mirzapur shall ensure compliance of closure order until and unless any further order otherwise is passed by Competent Authority.

12. We also make it clear that this order shall not prejudice the statutory remedy available to respondent 1 against closure order as also order imposing environmental compensation and if any such remedy is availed, we hope and trust that the same shall be dealt with in accordance with law without being influenced by any observations made by this Tribunal in the present proceedings."

10. It is evident from the submission as noted in the order of the Tribunal that before the Tribunal, the case of the petitioner was that the order of closure passed by the U.P. Polution Control Board should not be treated to be final and binding but should be made subject to the final outcome of the challenge as may be made by the petitioner. The emphasis was on the fact that the closure order had not attained finality but remedy of appeal was available to the petitioner. In the same context, the Tribunal made observation that the closure order would not come in the way of the petitioner in challenging the same before the statutory forum. This would not mean that the petitioner had given up its right to challenge the order by way of writ proceedings even when the said order was passed in violation of principles of natural justice.

11. Therefore, we are of the considered opinion that the submission made on behalf of the petitioner before the NGT could not be read as waiver of the constitutional remedy under Article 226 of the Constitution.

12. Thus, we have no hesitation in entertaining the challenge. The impugned orders are accordingly quashed and the writ petition stands disposed of in terms of the order passed in similar facts and circumstances in Writ C No. 38429 of 2024 and other connected matters as extracted above. Order Date :- 28.4.2025 Ashish Pd. (Anish Kumar Gupta,J.) (Manoj Kumar Gupta,J.) ASHISH PRASAD High Court of Judicature at Allahabad