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 was not served with any show cause notice and therefore, could not submit any explanation. The impugned order has been passed in a perfunctory manner. Even though no explanation could be submitted by the petitioner as no show cause notice was served but the impugned order mentions that reply was not found to be satisfactory. It is also submitted that the petitioner was not informed of the date of inspection on basis of which the impugned order came to be passed. The inspection request was also not supplied to the petitioners. Thus, there is gross violation of the 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 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 may 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 has appeared on behalf of respondents no. 4 and 5 and he does not dispute that the facts of the instant case are similar except that in the instant case there is additional plea that show cause notice was not served and that order was passed in a casual and mechanical manner He however, submits that before NGT O.A. No. 473 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-supply of adverse material and violation of the principles of natural justice.

7. In the instant case also, we find gross violation of the principles of natural justice. The adverse material i.e. inspection reports were not supplied and the approach was so casual that although the petitioner had not submitted any reply to the show cause notice as it's case is that it was not served on it, but the order records that the explanation was unsatisfactory.

8. The issue which still remains to be considered is whether even after having found the impugned closure order 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. 473 of 2024 has noted the submission made on behalf of the petitioner as under: "18. Learned counsel appearing for respondent 1 states at the Bar that though the order of closure and environmental compensation imposed upon it are appealable but it has not filed any appeal till date. He however states that Tribunal may leave it open to respondent 1 to avail such statutory remedy as available in law since punitive and prohibitory action has already been taken UPPCB by issuing closure order and imposing environmental compensation for past violations upon respondent 1.

19. In view of above facts, we find that no further is necessary to be passed in this matter 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.

20. 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. of compensation after realization shall

21. We also direct UPPCB that subject to order passed in appeal, if any, preferred by Project proponent i.e. respondent 1, recovery of environmental compensation, if not already deposited, shall be made in accordance with law, expeditiously, and the amount be utilized for rejuvenation/restoration/remediation of damaged environment in accordance with 'District Environment Plan', for the place in question, which shall be prepared by a Joint Committee comprising District Magistrate, Mirzapur, Regional Officer UPPCB, Sonebhadra and District Forest Officer, Mirzapur wherein District Magistrate shall be the nodal agency for coordination and compliance. The said Plan shall be prepared within one month and executed within three months after recovery of the environmental compensation, subject to any order passed otherwise in appeal, if any, preferred by respondent 1."

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. ASHISH PRASAD High Court of Judicature at Allahabad (Anish Kumar Gupta,J.) (Manoj Kumar Gupta,J.)

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 was not served with any show cause notice and therefore, could not submit any explanation. The impugned order has been passed in a perfunctory manner. Even though no explanation could be submitted by the petitioner as no show cause notice was served but the impugned order mentions that reply was not found to be satisfactory. It is also submitted that the petitioner was not informed of the date of inspection on basis of which the impugned order came to be passed. The inspection request was also not supplied to the petitioners. Thus, there is gross violation of the 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 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 may 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 has appeared on behalf of respondents no. 4 and 5 and he does not dispute that the facts of the instant case are similar except that in the instant case there is additional plea that show cause notice was not served and that order was passed in a casual and mechanical manner He however, submits that before NGT O.A. No. 473 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-supply of adverse material and violation of the principles of natural justice.

7. In the instant case also, we find gross violation of the principles of natural justice. The adverse material i.e. inspection reports were not supplied and the approach was so casual that although the petitioner had not submitted any reply to the show cause notice as it's case is that it was not served on it, but the order records that the explanation was unsatisfactory.

8. The issue which still remains to be considered is whether even after having found the impugned closure order 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. 473 of 2024 has noted the submission made on behalf of the petitioner as under: "18. Learned counsel appearing for respondent 1 states at the Bar that though the order of closure and environmental compensation imposed upon it are appealable but it has not filed any appeal till date. He however states that Tribunal may leave it open to respondent 1 to avail such statutory remedy as available in law since punitive and prohibitory action has already been taken UPPCB by issuing closure order and imposing environmental compensation for past violations upon respondent 1.

19. In view of above facts, we find that no further is necessary to be passed in this matter 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.

20. 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. of compensation after realization shall

21. We also direct UPPCB that subject to order passed in appeal, if any, preferred by Project proponent i.e. respondent 1, recovery of environmental compensation, if not already deposited, shall be made in accordance with law, expeditiously, and the amount be utilized for rejuvenation/restoration/remediation of damaged environment in accordance with 'District Environment Plan', for the place in question, which shall be prepared by a Joint Committee comprising District Magistrate, Mirzapur, Regional Officer UPPCB, Sonebhadra and District Forest Officer, Mirzapur wherein District Magistrate shall be the nodal agency for coordination and compliance. The said Plan shall be prepared within one month and executed within three months after recovery of the environmental compensation, subject to any order passed otherwise in appeal, if any, preferred by respondent 1."

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. ASHISH PRASAD High Court of Judicature at Allahabad (Anish Kumar Gupta,J.) (Manoj Kumar Gupta,J.)