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2019 DIGILAW 452 (ALL)

Om Prakash Mittal v. State Of U. P.

2019-02-20

GOVIND MATHUR, SAURABH SHYAM SHAMSHERY

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ORDER : Govind Mathur, C.J. 1. Invoking powers under sub-Section (4) of Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as “Act, 1981”), the Uttar Pradesh Pollution Control Board (hereinafter referred to as 'Board') extended consent to M/s Om Textile Mill, Saraswati Kund, Mathura to operate an industrial unit in an air pollution control area. To assail validity of the consent aforesaid, this petition for writ is preferred. 2. The case of the petitioner is that under a written deed dated 01.05.2002, a partnership firm in the name of M/s Om Saree Centre, Saraswati Kund, Mathura was constituted. The firm had four partners including the present petitioner with equal share. Being engaged in the business of printing sarees, the firm established a processing unit after having necessary consent from the Board. In the year 2007, three other partners of the firm, excluded the petitioner from the partnership, also constituted another firm in the name of M/s Om Saree Centre. This firm was dissolved on 22.09.2007 and its all business, goodwill, building, plant and machinery, etc. were taken over by one partner Sri Anil Kumar Mittal, as sole owner. This entire property then was rented out to M/s Om Textile Mill, Saraswati Kund, Mathura. M/s Om Textile Mill then preferred an application as per sub-Section (1) of Section 21 of the Act, 1981 to have consent of the Board to run an industrial unit in an air pollution control area. The Board vide order impugned dated 31.01.2008 extended its consent in favour of M/s Om Textile Mill, Mathura. Prior to that, the petitioner submitted certain objections for grant of consent to M/s Om Textile Mill Ltd. It was contended on behalf of the petitioner that a consent was already in currency in favour of M/s Om Saree Centre, Saraswati Kund, Mathura and, without partition of that, no further consent could have been granted to any other firm/company or a body. As per the petitioner, Sri Anil Kumar Mittal by placing certain false and fake documents was making efforts to have consent from the Board by misleading its authorities. 3. In this petition for writ, it is submitted on behalf of the petitioner that the Regional Manager of the Board while extending consent in favour of M/s Om Textile Mill (respondent no. 5) has not taken into consideration the objections raised by the petitioner. 3. In this petition for writ, it is submitted on behalf of the petitioner that the Regional Manager of the Board while extending consent in favour of M/s Om Textile Mill (respondent no. 5) has not taken into consideration the objections raised by the petitioner. According to learned counsel appearing on behalf of the petitioner, the Regional Manager was under obligation to consider all the objections raised and to decide the same by a reasoned order. The grant of consent without examining the objections raised by the petitioner is absolutely unjust, arbitrary and an outcome of colourable exercise of powers. It is further submitted that the consent granted on 31.01.2008 is further bad as the order does not contain the reasons which are required to be recorded as per provisions of sub-Section (4) of Section 21 of the Act, 1981. 4. Per contra, as per learned counsel appearing on behalf of respondent no. 5, this petition for writ is nothing but an effort to frustrate an arbitral award passed by the Arbitrators among the partners of M/s Om Saree Centre, Saraswati Kund, Mathura. It is submitted that after constitution of partnership firm in the name of M/s Om Saree Centre, Saraswati Kund, Mathura, some dispute arose between its partners who happens to be real brothers. With consent of the parties, Sri Roop Kishore Bansal, Advocate, Sri Ganesh Prasad and Sri Ram Lal Agrawal were appointed as Arbitrator to resolve the dispute between the parties and an award was passed by them on 19.06.2007. As per the award aforesaid, the entire business of the firm M/s Om Saree Centre was to be given to Sri Anil Kumar Mittal, a partner of the firm. Being aggrieved by the award, the petitioner preferred an application as per provisions of Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “Act, 1996”) before the District Judge, Mathura. The Misc. Arbitration Case No. 11 of 2010 aforesaid came to be dismissed under an order dated 23.11.2012. The present petitioner preferred an appeal as per provisions of Section 37 of the Act, 1996 to challenge the order passed by learned District Judge, Mathura before this Court. The Misc. Arbitration Case No. 11 of 2010 aforesaid came to be dismissed under an order dated 23.11.2012. The present petitioner preferred an appeal as per provisions of Section 37 of the Act, 1996 to challenge the order passed by learned District Judge, Mathura before this Court. A Single Bench of this Court vide its judgment dated 25.05.2018 allowed the appeal and validity of the same has been challenged by three other former partners of M/s Om Saree Centre, Saraswati Kund, Mathur by way of filing a Special Leave Petition before the Hon'ble Supreme Court of India. Hon'ble Supreme Court in the leave petition aforesaid, vide order dated 28.09.2018 issued notices to the present petitioner and also stayed operation of the judgment passed by the High Court dated 25.05.2018. 5. According to learned counsel, in light of the interim order passed by the Apex Court, the award given by the Arbitrators dated 19.06.2007 is in existence and, according to that, the petitioner cannot claim any right relating to partnership firm M/s Om Saree Centre, Saraswati Kund, Mathura which, as a matter of fact, stands dissolved long back. It is asserted that the Board looking to all the relevant facts well within its jurisdiction granted consent in favour of respondent no.5. 6. In rejoinder affidavit, it is submitted by learned counsel for the petitioner that the consent under challenge was granted much back on 31.01.2008 and, on that day, no occasion was there to grant the consent in the name of M/s Om Textile Mill. 7. Having considered all aspects of the matter, we do not find the instant case fit to be interfered under Article 226 of the Constitution of India. 8. As a matter of fact, this petition for writ is nothing but an offshoot of the other litigation pending between the parties relating to dissolution of a partnership firm and the rights said to be created by an award passed by the Arbitrators. The Arbitrators passed the award in the year 2007 and, undoubtedly, that remained in currency till acceptance of the appeal preferred by the petitioner as per provisions of Section 37 of the Act, 1996. On 31.01.2008, respondent no. 5, as such, had a right to move an application to have consent from the Board for running an industrial unit in air pollution control area. The petitioner, being having no right in the firm respondent no. On 31.01.2008, respondent no. 5, as such, had a right to move an application to have consent from the Board for running an industrial unit in air pollution control area. The petitioner, being having no right in the firm respondent no. 5, no need was there to consider and decide the objections raised by the petitioner, which are essentially related to the arbitral proceedings. 9. For the reason that the issue being pending before the Apex Court, we are not examining the argument advanced by learned counsel for the petitioner that the arbitral award dated 19.06.2007 itself is non est as the petitioner never consented for arbitral proceedings, hence, the sole proceeding under the Act, 1996 were without jurisdiction. It is not in dispute that the lis between the parties is now pending consideration before Hon'ble Supreme Court. It is also not in dispute that an interim order in favour of respondent no. 5 is in operation. 10. So far as the issue with regard to violation of the provisions of sub-Section (4) of Section 21 of the Act, 1981 is concerned, suffice to mention that the consent letter dated 31.01.2008 imposes certain objections while granting consent and that also consists all the reasons for invoking powers positively in the document impugned. It would also be appropriate to state that the petitioner is having no locus to challenge the consent on this ground. 11. In light of whatever stated above, we do not find any just reason to interfere in the matter. The writ petition, hence, is dismissed.