High Court · 2025

"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 Sarthak Singh, 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. 469 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 26.07.2024 in O.A. 469 of 2024 has noted the submissions made on behalf of the petitioner as under: "21. In view of the facts stated above, we find that no further order is necessary to be passed in this matter except the observation that respondent 1 has Statutory remedy of Appeal against closure order as well as order imposing environmental compensation and we leave it open to respondent 1 to avail such Statutory remedy in accordance with law if it so advices.

22. We also find it appropriate to observe that District Magistrate, Mirzapur and Senior Superintendent of Police shall ensure compliance of closure order until and unless any further order otherwise is passed by Competent Authority.

23. 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 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. Pollution 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 his 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. (Anish Kumar Gupta, J.) (Manoj Kumar Gupta, J.) Order Date :- 28.5.2025 GANESH PRAKASH High Court of Judicature at Allahabad

"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 Sarthak Singh, 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. 469 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 26.07.2024 in O.A. 469 of 2024 has noted the submissions made on behalf of the petitioner as under: "21. In view of the facts stated above, we find that no further order is necessary to be passed in this matter except the observation that respondent 1 has Statutory remedy of Appeal against closure order as well as order imposing environmental compensation and we leave it open to respondent 1 to avail such Statutory remedy in accordance with law if it so advices.

22. We also find it appropriate to observe that District Magistrate, Mirzapur and Senior Superintendent of Police shall ensure compliance of closure order until and unless any further order otherwise is passed by Competent Authority.

23. 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 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. Pollution 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 his 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. (Anish Kumar Gupta, J.) (Manoj Kumar Gupta, J.) Order Date :- 28.5.2025 GANESH PRAKASH High Court of Judicature at Allahabad