The closure order was a temporary measure that could be revoked if the petitioner took and reported remedial measures. The court found no lack of jurisdiction or violation of principles of natural justice in passing the closure order, and sustained the preliminary objection raised by the respondent Board regarding the maintainability of the writ petition.

JUDGMENT :

SUNITA AGARWAL, J.

1. This writ petition is directed against the order dated 12.06.2023 passed by the Gujarat Pollution Control Board directing the closure of the petitioner company, as also imposing interim environmental damage compensation of Rs. 25,00,000/-. Further relief has also been sought to set aside the notice of intention to revoke (withdraw) consent namely CCA No. AWH95670 & H 108228 dated 13.06.2023.

2. Pressing the relief sought in the writ petition, it is submitted by the learned Senior Counsel Mr. Shalin Mehta for the petitioner that the closure order suffers from the vice of natural justice. No show-cause notice at all has been issued to the petitioner before passing the closure order based on inspection of the industry, being run by the petitioner, on 07.06.2023. It is further argued that the closure order has been passed in violation of the procedure prescribed in the statutory provision of The Environmental (Protection) Act, 1986 (in short as ‘the Act, 1986) read with the Environment (Protection) Rules, 1986 (in short as ‘the Rules, 1986). The respondent - Gujarat Pollution Control Board (in short as ‘the Board’) has exceeded its jurisdiction under section 5 of the Act, 1986, inasmuch as, it has no authority to impose penalty. It was further argued that the closure order has been passed by an Authority who is not vested with the jurisdiction to pass such order. Section 23 of the Act, 1986 provided that the Central Government by notification in the official Gazette, subject to such conditions and limitations, as may be specified in the notification, may confer such affairs, powers and functions under the Act as it may deem fit necessary or expedient to any Officer, State Government, or any authority. Section 3 sub-section (1) empowers the Central Government to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.

3. It was contended that the powers conferred on the Central Government to take measures as prescribed in subsection (2) of Section 3 to achieve the purpose of the Act, 1986, as per the case of the respondent Board itself has been conferred on the Chairman of the Board. The closure order, however, has been passed by the Member Secretary, Gujarat Pollution Control Board. Sub-delegation of the powers conferred upon the Chairman Board was not permissible and, as such, the order passed by the Member Secretary, Gujarat Pollution Control Board suffers from the lack of jurisdiction and is liable to be set aside.

4. On the preliminary objections raised by the respondent with regard to maintainability of the writ petition, in view of the alternative remedy under section 5(a) of the Act, 1986 of appeal to National Green Tribunal, it was argued by the learned Senior Counsel for the petitioner that alternative statutory remedy cannot be treated as a bar to exercise of the power of judicial review under Article 226 of the Constitution of India, in three circumstances : -

(i) Whether a writ petition has been filed for enforcement of the fundamental rights ;

(ii) Whether there has been violation of principles of natural justice;

(iii) Whether order of proceeding are wholly without jurisdiction or the vires of the Act is challenge.”

5. The reference has been made to the decision of the Apex Court in the case of Whirlpool Corporation versus Registrar of Trade Marks, (1998) 8 SCC 1 relied and referred in a recent decision in Radha Krishan Industries versus State of Himachal Pradesh and Others, (2021) 6 SCC 771. The principle of law laid down therein have been placed before us, paragraph 27 of which is relevant to be extracted hereinunder : -

“27. The principles of law which emerge are that :

27.1 The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

27.2 The High C