# M/S AL Haq Food Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 905
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Writ C No. 4368 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-al-haq-food-pvt-ltd-v-state-of-u-p-ors-50473
- **Pages:** 22

## Headnote

A. Civil Law - The Water (Prevention &
Control of Pollution) Act, 1974 - Sections
25/26 - The Air (Prevention & Control of
Pollution) Act, 1981 - Sections 21/22 -
impugned
order-
consent
to
operate
slaughterhouse refused by UPPCB- - NOC
given to petitioner by District Magistratethe
slaughterhouse
not
operation-
meanwhile
GO
dated
07.07.2017
containing 24-point compendium came in
vogue-compliance mandatory in light of
the directions given by the Supreme
Court.

B. Preliminary objection-maintainability of
writ
petition-
alternative
remedy
available-Section 28 of the Water Act-
Section 31 of the Air Act- objection
rejected-existence of alternative remedy
is not an absolute bar-writ petition held to
be maintainable. (Paras 15, 16 and 17)

HELD:
Having heard the learned Counsels on the issue
of preliminary hearing, this Court is of the view
that the existence of alternative remedy is not
an absolute bar, is a legal proposition, which
does not require any detailed discussion. It is
settled law that while a High Court would
normally not exercise its writ jurisdiction under
Article 226 of the Constitution of India, if an
effective and efficacious alternative remedy is
available and the existence of an alternate
remedy does not by itself per se bar the High
Court from exercising its jurisdiction in certain
contingencies.
This
principle
has
been
906 INDIAN LAW REPORTS ALLAHABAD SERIES
crystallized by the Hon'ble Apex Court in
Whirpool
Corporation
Vs
Registrar
of
Trademarks, Mumbai : (1998) 8 SCC 1 and
Harbanslal Sahni Vs Indian Oil Corporation Ltd
:(2003) 2 SCC 107. In Radha Krishan Industries
Vs St. of Himachal Pradesh & Ors (supra),
wherein the Hon'ble Apex Court has summarized
the principles governing the exercise of writ
jurisdiction by the High Court in the presence of
an alternate remedy. (Para 15)

Therefore, the test that is to be applied for the
determination of a question of law is whether
the rights of the parties before the Court can be
determined without reference to the factual
scenario. In this case, as has been argued, refusal
to grant 'consent to operate' by means of the
impugned orders dated 11.07.2020 is violative of
right to occupation, trade and business as
guaranteed under Article 19 (g) of the Constitution
of India, particularly the background of the fact
that the petitioner has a right to run the business
in respect of which the permission to establish the
unit was accorded by U.P. Pollution Control Board
by means of letter dated 04.01.2017. Apparently
the issues raised by the petitioner are questions of
law which can be decided upon a comprehensive
reading of various provisions of Water Act, 1974,
Air Act, 1981 and other provisions of the Act as
well as various Government Orders and legal
propositions on the issue to grant of 'consent to
operate' the modern slaughterhouse. Thus, we are
of the considered opinion that the questions raised
by the petitioner can be ad

## Text

_Characters 0–39,790 of 77,710. This is a partial read: ask again with offset=39790 for what follows._

6 All. M/S AL Haq Food Pvt. Ltd. Vs. State of U.P. & Ors.
905
law. In the case of Sita Ram (Supra), it
has been held that Gaon Sabha litigation
initiated/ conducted in violation of Para128 of Gaon Sabha Manual is illegal.

14. It is also relevant that appeal
under Section 11(1) of U.P.C.H. Act has
been filed by contesting respondents on
26.4.2017 against the order of Assistant
Consolidation Officer dated 4.9.1976 and
Village has been denotified under Section
52 of U.P.C.H. Act on 8.2.1978, as such,
entertaining the appeal after 41 years will
be abuse of process of law.

15. Case laws cited by learned
counsel for the contesting respondent no.3
are not applicable in the dispute arising out
of U.P.C.H. Act where procedure has been
provided for filing objection / appeal /
revision
at
proper
stage
by
person
authorized to initiate the proceeding.

16. Considering the entire facts and
circumstances as well as ratio of law laid
down in Smt. Sukhjinder Jeet Kaur
(Supra) and Sita Ram (Supra) the
impugned order dated 19.9.2019 passed
by Settlement Officer Consolidation as
well
orders
dated
21.12.2021
and
12.10.2021
passed
by
the
Deputy
Director Consolidation are liable to be set
aside and are hereby set aside. The writ
petition stands allowed. No order as to
cost.
----------
(2023) 6 ILRA 905
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE OM PRAKASH SHUKLA, J.
Writ C No. 4368 of 2022

M/S AL Haq Food Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Salil Kumar Srivastava, Abhinav Singh,
Lalta Prasad Misra, Rahul Kapoor, Rahul
Srivastava, Shobhit Mohan Shukla, Vinod
Kumar

Counsel for the Respondents:
C.S.C., A.S.G.I., Ashok Kumar Verma

A. Civil Law - The Water (Prevention &
Control of Pollution) Act, 1974 - Sections
25/26 - The Air (Prevention & Control of
Pollution) Act, 1981 - Sections 21/22 -
impugned
order-
consent
to
operate
slaughterhouse refused by UPPCB- - NOC
given to petitioner by District Magistratethe
slaughterhouse
not
operation-
meanwhile
GO
dated
07.07.2017
containing 24-point compendium came in
vogue-compliance mandatory in light of
the directions given by the Supreme
Court.

B. Preliminary objection-maintainability of
writ
petition-
alternative
remedy
available-Section 28 of the Water Act-
Section 31 of the Air Act- objection
rejected-existence of alternative remedy
is not an absolute bar-writ petition held to
be maintainable. (Paras 15, 16 and 17)

HELD:
Having heard the learned Counsels on the issue
of preliminary hearing, this Court is of the view
that the existence of alternative remedy is not
an absolute bar, is a legal proposition, which
does not require any detailed discussion. It is
settled law that while a High Court would
normally not exercise its writ jurisdiction under
Article 226 of the Constitution of India, if an
effective and efficacious alternative remedy is
available and the existence of an alternate
remedy does not by itself per se bar the High
Court from exercising its jurisdiction in certain
contingencies.
This
principle
has
been
906 INDIAN LAW REPORTS ALLAHABAD SERIES
crystallized by the Hon'ble Apex Court in
Whirpool
Corporation
Vs
Registrar
of
Trademarks, Mumbai : (1998) 8 SCC 1 and
Harbanslal Sahni Vs Indian Oil Corporation Ltd
:(2003) 2 SCC 107. In Radha Krishan Industries
Vs St. of Himachal Pradesh & Ors (supra),
wherein the Hon'ble Apex Court has summarized
the principles governing the exercise of writ
jurisdiction by the High Court in the presence of
an alternate remedy. (Para 15)

Therefore, the test that is to be applied for the
determination of a question of law is whether
the rights of the parties before the Court can be
determined without reference to the factual
scenario. In this case, as has been argued, refusal
to grant 'consent to operate' by means of the
impugned orders dated 11.07.2020 is violative of
right to occupation, trade and business as
guaranteed under Article 19 (g) of the Constitution
of India, particularly the background of the fact
that the petitioner has a right to run the business
in respect of which the permission to establish the
unit was accorded by U.P. Pollution Control Board
by means of letter dated 04.01.2017. Apparently
the issues raised by the petitioner are questions of
law which can be decided upon a comprehensive
reading of various provisions of Water Act, 1974,
Air Act, 1981 and other provisions of the Act as
well as various Government Orders and legal
propositions on the issue to grant of 'consent to
operate' the modern slaughterhouse. Thus, we are
of the considered opinion that the questions raised
by the petitioner can be adjudicated without
delving upon any factual dispute. Thus, we
proceed to hold the instant petition maintainable
under Article 226 of the Constitution of India.
(Para 17)

C. Analysis of the impugned order-Board is
bestowed with three different powers-power
to grant the 'consent to operate', power to
renew the said consent, power to revoke the
said consent prior to the ned of term for
which the consent is given-petitioner had
established slaughterhouse but it was not
operational-compliance
of
terms
and
conditions
of
GO
dated
07.07.2017
mandatory-no such NOC or revalidation of
earlier NOC sought by the petitioner-no error
in impugned order- writ petition dismissed.
(Paras 29, 30, 31, 32, 34, 36, 37, 38, 39, 40
and 41)
HELD:
A bare perusal of the aforesaid provisions clearly
reveals that the Board is bestowed with three
different powers, namely, the power to grant
the 'consent to operate', the power to renew the
said consent and the power to revoke the said
consent prior to the end of the term for which
the consent order is given. Subclause (3) of
Section 21 imposes a legal duty that in case an
application for consent is filed under sub-section
(1), then the Board shall inquire and follow such
procedure as may be prescribed. (Para 32)

It is, indeed, a settled principle of law that if a
procedure has been prescribed under a statute,
the appropriate authority is legally bound to
adhere to the said procedure. (Para 34)

This Court finds that although it is not the case
of the U.P. Pollution Control Board that it has
made
any
attempt
to
either
prohibit
slaughtering or vending of animal food, however
they have taken a consistent stand that they are
empowered under both the Acts i.e. Water Act
and Air Act to regulate this business and
vending for ensuring lawful methods to be
adopted and to prevent unlawful methods for
carrying of such trade and business in order to
protect the environment in the light of the
decision of the Apex Court dated 17.02.2017
rendered in Common Cause Vs U.O.I. (supra),
Laxmi Narayan Modi Vs U.O.I. (supra) as well as
Government Order dated 07.07.2017 issued in
compliance of the aforesaid decisions of the
Apex Court and the order dated 03.05.2023
passed by the National Green Tribunal in
Original Application No. 879 of 2022 : Gauri
Maulekhi Vs U.O.I. & ors.. There is also no
dispute that such trade and business can be
regulated including by licensing provisions.
There is also no dispute that such trade and
business has been permitted by the appropriate
regulations under the relevant laws and the
Rules and Regulations. Thus in the absence of
any such plea on behalf of the U.P. Pollution
Control Board to impose prohibition of such
trade and business which also is not directly
reflected in the Government Order dated
07.07.2017, there cannot be any assumption or
presumption of such prohibition or else that
would violate constitutional rights and the
fundamental
rights
guaranteed
under
the
Constitution of India. (Para 36)
6 All. M/S AL Haq Food Pvt. Ltd. Vs. State of U.P. & Ors.
907
Apparently, the order dated 21.05.2015 issued
by the District Magistrate, Unnao while granting
NOC
to
the
petitioner
to
establish
the
modernized
slaughterhouse
plant
clearly
mentioned in condition no.68 that it will be
mandatory for the petitioner to follow the
direction issued in future and condition no. 69
categorically St.s about the consequential effect
of deemed cancellation of the said NOC, in case
of any irregularity or violation of any of the
conditions. The order dated 04.01.2017 issued
by the U.P. Pollution Control Board clearly
mentioned that conditions enumerated in the
NOC given by the District Magistrate, Unnao by
the aforesaid order dated 21.05.2015 shall be
complied with in letter and spirit. Meaning
thereby the petitioner is obliged to follow all the
directions for continuation of the NOC granted
by the District Magistrate, Unnao in future.
However, the issue does not rest here as the
Government Order dated 07.07.2017 specifically
mentions
about
superssession
of
the
Government Order dated
26.11.2014 and
accordingly directs all the slaughterhouse units
to comply with 24 point compendium as
mentioned
in
para-3
of
the
aforesaid
Government
Order
dated
07.07.2017
for
consent to operate/ establishment of the
slaughterhouse. Thus, since the earlier NOC
dated 21.05.2015 was issued in view of the
existing Government Order dated 26.11.2014,
which as per the Government Order dated
07.07.2017
stands
superseded,
it
was
mandatory for all the slaughterhouse units that
in order to seek 'consent to operate', the 24
point compendium as mentioned in para-3 of
the
aforesaid
Government
Order
dated
07.07.2017 be followed. Thus, apparently, there
are two aspects of the matter; firstly NOC ought
to have been taken as per the Government
Order dated 07.07.2017 to establish the unit;
and secondly on establishment of unit, the unit
ought to have applied 'consent to operate' as
per the Government Order dated 07.07.2017.
(Para 39)

In the instant case, NOC of the District
Magistrate, Unnao was granted before issuance
of the Government Order dated 07.07.2017.
Although the petitioner had come to establish
the modernized slaughterhouse unit, however,
the same was not operational and as such it
was mandatory for the petitioner to comply with
all the terms of the Government Order dated
07.07.2017 including NOC for 'consent to
operate' from the District Magistrate, Unnao, St.
Level Committee and U.P. Pollution Control
Board. (Para 40)

It is an admitted fact that the petitioner has not
taken NOC from the District Magistrate, Unnao
nor has obtained a re-validation of the said NOC
in order to comply with the provisions of
Government Order dated 07.07.2017, which are
mandatory in nature having been issued
pursuant to the dictum of the Apex Court in
Common Cause Vs U.O.I. & ors. (supra) and
Laxmi Narain Modi Vs U.O.I. (supra), for
running
the
modernized
slaughterhouse.
Therefore, the U.P. Pollution Control Board has
rightly refused to grant 'consent to operate' by
means of the impugned orders. (Para 41)

Petition dismissed. (E-14)

List of Cases cited:

1. Hon'ble Apex Court in Writ Petition (C)
No.330 of 2001 (Common Cause Vs U.O.I. &
Ors.), Writ Petition No. 44 of 2004, Contempt
Petition No. 124 of 2015 and connected Writ
Petition (C) No. 309 of 2003 (Laxmi Narain Modi
Vs U.O.I. & ors.) on 17.02.2017

2. Radha Krishan Industries Vs St. of Himachal
Pradesh & ors., (2021) 6 SCC 771

3. Rajendra Prasad Upadhyay Vs St. of U.P. &
ors. (Special Appeal No. 73 of 2012, decided on
19.03.2012)

4. M/s Magadh Sugar & Energy Ltd. Vs The St.
of Bihar & ors. (Civil Appeal No.5728 of 2021
decided on 24.09.2021)

5.
Piscesia
Sarvonik
Jv
LLP
through
Designated
Partner
DLF
Corporate
Park
Haryana Vs St. of U.P. & ors. (Criminal Misc.
Writ Petition No. 1008 of 2003, decided on
15.02.2023)

6.
Whirpool
Corporation
Vs
Registrar
of
Trademarks, Mumbai : (1998) 8 SCC 1

7. Harbanslal Sahni Vs Indian Oil Corporation
Ltd :(2003) 2 SCC 107
908 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Meenakshi Mills Ltd. Vs Commissioner of
Income Tax : AIR 1957 SC 49

9. St. of Madhya Pradesh & ors. Vs Tikamdas :
(1975) 2 SCC 100

10. Chairman Railway Board & ors. Vs C.R.
Rangadhamaiah & ors. : (1976) 6 SCC 623

11. J.S. Yadav Vs St. of U.P. : (2011) 6 SCC 570

12. Canara Bank & anr. Vs M. Mahesh Kumar :
(2015) 7 SCC 412

13. Bharat Sanchar Nigam Ltd. Vs Tata
Communication Ltd. : (2022) SCC On-Line SC
1280

14. n DSR Steel (Private) Limited Vs St. of Raj.
& ors. : (2012) 6 SCC 782 and Bussa Overseas

15. Properties Pvt. Ltd.& anr. Vs U.O.I. : (2016)
4 SCC 696

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) Heard Dr. L.P. Mishra and Shri
Abhinav
Singh,
learned
Counsel
representing the petitioners, Shri S.C.
Mishra, learned Senior Advocate, assisted
by Shri Ashok Kumar Verma, learned
Counsel representing the U.P. Pollution
Control Board and learned State Counsel
for the State-respondents.

(2) The petitioner-M/s Al-Haq Foods
Pvt. Ltd., which is a Private Limited
Company registered under the provision of
the Companies Act, has sought to invoke
the extra-ordinary writ jurisdiction of this
Court under Article 226 of the Constitution
of India to challenge two orders dated
11.07.2020 passed on the same day by the
Chief Environmental Officer, Circle-5, U.P.
Pollution
Control
Board,
Lucknow,
whereby
the
'consent
to
operate'
slaughterhouse (integrated meat shop) of
the petitioner was refused (i) under Section
25/26 of the Water (Prevention & Control
of Pollution) Act, 1974 (hereinafter referred
to as "Water Act, 1974"); and (ii) under
Section 21/22 of the Air (Prevention &
Control of Pollution) Act, 1981 (hereinafter
referred to as "Air Act, 1981") as amended
and by both the impugned orders, the
petitioner has been also directed to comply
with the mandatory provisions of Water
Act, 1974 and Air Act, 1981.

Though the petitioner had also
sought a direction for declaring the
provisions of Section 11-A of the Water
Act, 1974 as ultra vires to the Constitution
as well as to the provisions of the Water
Act, 1974, however, during the course of
arguments, learned Counsel representing
the petitioner has given up the said
challenge.

FACTUAL MATRIX

(3) Shorn off unnecessary details, the
case of the petitioner as narrated in the
pleadings available on record and having
gathered from the arguments of the
respective parties is that sometimes in the
year 2014, the petitioner, M/s Al Haq Foods
Pvt. Ltd., applied for 'No Objection
Certificate' (hereinafter referred to as
'NOC') for establishment of modern
integrated slaughterhouse at U.P.S.I.D.C.
Industrial Area,
Unnao. The
District
Magistrate, Unnao, vide order dated
21.05.2015, in consultation with all district
stakeholder departments, granted NOC to
the petitioner's unit for establishment of
modern integrated slaughterhouse with 69
conditions enumerated in the said order
dated 21.05.2015 itself, however, the period
of expiry has not been prescribed in the
aforesaid order dated 21.05.2015. Further,
condition no. 68 of the aforesaid order
dated 21.05.2015 stipulates that it will also
6 All. M/S AL Haq Food Pvt. Ltd. Vs. State of U.P. & Ors.
909
be mandatory to follow the instructions
given in future, whereas condition no. 69
stipulates that NOC will automatically be
deemed to be cancelled for any kind of
irregularity or violation of any of the
conditions.

(4)
Thereafter,
vide
office
memorandum dated 21.10.2016, the State
Level
Committee,
which
has
been
constituted for implementation of various
aspects related to operation of modern
integrated slaughterhouse, by the State
Government, had issued NOC to the
petitioner's
unit
with
12
conditions.
Condition No. 11 stipulates that before
starting operation of the project, noobjection will have to be obtained from the
Uttar Pradesh Pollution Control Board
within three months. It was also stated in
the aforesaid office memorandum dated
21.10.2016 that after NOC given by the
State Level Committee, the concerned firm
will submit an application in accordance
with rules to the Member Secretary, U.P.
Pollution Control Board, Lucknow, who, in
turn after issuing NOC within three months
for the operation of the scheme to the
concerned firm, shall make available the
compliance report to the State Level
Committee.

(5) Pursuant to the aforesaid office
memorandum
dated
21.10.2016,
the
petitioner's unit had moved an application
for granting NOC to the Member Secretary,
U.P. Pollution control Board, Lucknow,
which was apparently received in the office
of U.P. Pollution Control Board on
21.11.2016.
After
that
the
Member
Secretary, U.P. Pollution Control Board,
Lucknow accorded NOC to the petitioner
for establishing the slaughterhouse with
certain
conditions
vide
order
dated
04.01.2017. The relevant portion of the
order
dated
04.01.2017
is
extracted
hereinbelow :-

"महोदय,

कृपया उपरोक्त भवियक अपने अनापभत्त प्रमाण हेतु
आवेदन पत्र भदनांक 21.11.16 (प्राप्त) का संदिथ लें। उद्योग को
पयाथवरणीय प्रदूिण के दृभिकोण से भनम्नभलभखत भवभशि शतों एवं
सामान्य शतों (संलग्नकं) के समुभचत अनुपालन के साथ सशतथ
अनापभत्त प्रमाण पत्र स्वीकृत भकया जाता है।

अनापभत्त प्रमाण पत्र भनम्नभलभखत भवभशि भववरणों के
भलए
ही
भनगथत
भकया
जा
रहा
है।

(क) स्थलः
प्लाट नं०-एर्- 13, 14, 29, 30, 44,
45, 46 एवम् एच- 72, 73 औ० क्षेत्र,
साईट- 2, उन्नाव।
(ख) उत्पादनः
(ग) सहं उत्पाद
र्ोजेन मीट- 50 टन/भदन,
एम०बी०एम०- 20 टन/भदन, टैलो- 10
टन/भदन
(घ) मुख्य कच्चे मालः
300 नग िैंस व िैसा प्रभतभदन
(ड़) औद्योभगक उत्प्रवाह की मात्राः
385 भकलो लीटर प्रभतभदन
(च) प्रयुक्त ईंधनः
डीजल डी०जी० सेट हेतु
लकड़ी- 2 टन/भदन
राइस हस्क- 2 टन/भदन

उपयुथक्त भविय वस्तु में से भकसी िी प्रकार से पररवतथन
करने पर पुनः अनापभत्त प्रमाण-पत्र प्राप्त करना आवश्यक होगा

1. इकाई का संचालन तब तक प्रारम्ि नहीं भकया
जाये जब तक भक वह राज्य बोडथ से जल एवं वायु अभधभनयमों के
अन्तगथत सहमभत प्राप्त न कर ले। जल एवं वायु सहमभत प्राप्त करने
हेतु इकाई में संचालन प्रारम्ि करने ककी भतभथ से कम से कम 02
माह पहले भनधाथररत सहमभत आवेदन पत्रों को संचालन पूवथ प्रथम
आवेदन का उल्लेख करते हुये इस कायाथलय में अवश्य जमा कर
भदया जाये।

2. उद्योग को राज्य स्तरीय सभमभत द्वारा भनगथत
अनापभत्त प्रमाण पत्र की शतों का पूणथतया अनुपालन भकया जाये।

3. उद्योग में उत्प्रवाह शुभद्धकरण संयंत्र हेतु भदये गये
प्रस्ताव के अनुसार ई०टी०पी० की स्थापना कर शून्य उत्प्रवाह
व्यवस्था मेन्टेन रखी जाये।

4. उद्योग में भदये गये प्रस्ताव के अनुसार उभचत
क्षमता का रेण्डररंग प्लांट स्थाभपत भकया जाये।

5. उद्योग में दुगथन्ध के भनयंत्रण हेतु उभचत क्षमता के
बायो भर्ल्टर की स्थापना की जाये।
910 INDIAN LAW REPORTS ALLAHABAD SERIES

6. उद्योग में भदये गये प्रस्ताव के अनुसार गोबर गैस
प्लांट की स्थापना की जाये।

7. उद्योग में भदये गये प्रस्ताव के अनुसार वायु
प्रदूिण भनयंत्रण की व्यवस्था की जाये।

8. उद्योग द्वारा 6 टी०पी०एच० क्षमता के ब्वायलर
पर वायु प्रदूिण भनयंत्रण व्यवस्था भदये गये प्रस्ताव के अनुरूप
स्थाभपत भकया जाय तथा प्रस्ताभवत डी.जी सेटों पर ध्वभन/वायु
प्रदूिण भनयंत्रण व्यवस्था नानकों के अनुरूप स्थाभपत भकया जाये।

9. िोस अपभशि (हैजाडथस वेस्ट) का भनस्तारण
टी०एस०डी०एर्० में भकया जाये।

10. उद्योग पररसर में सघन वृक्षों का रोपण भकया
जाये।

11. पयाथवरण (संरक्षण) अभधभनयम, 1986 के
प्राभवधानों का अनुपालन भकया जाये।

12. प्रभिया से जभनत वेस्ट का समुभचत भनस्तारण
भकया जाये एवं इससे सम्बभन्धत ररकाडथ िी रखा जाये।

13. उद्योग पररसर में विाथ जल संचयन हेतु रूर् टाप
रेन वाटर हावेभस्टंग व्यवस्था स्थाभपत की जाये।

14. िू गिथ जल दोहन हेतु सम्बभन्धत भविाग से
अनापभत्त प्रमाण पत्र प्राप्त करना अभनवायथ होगा।

15. उद्योग से जभनत घरेलू उत्प्रवाह का शुभद्धकरण
उभचत क्षमता के सेभप्टक टैंक/सोक भपट के माध्यम से भकया जाये।

16. भजलाभधकारी उन्नाव द्वारा भदनांक- 21.5.15
को भनगथत अनापभत्त प्रमाण पत्र की शतों का पूणथतया अनुपालन भकया
जाये।

17. उद्योग से भकसी िी प्रकार का उत्प्रवाह पररसर
से बाहर भनस्ताररत न भकया जाये।

उपरोक्त शतों का अनुपालन न भकये जाने की दशा में
उद्योग द्वारा प्रेभित बैंक गारन्टी संख्या 36791LG000117,
RS. 10,00,000/- बोडथ के पक्ष में जब्त की जा सकती है।

कृपया ध्यान दें भक उपयुथक्त भलभखत भवभशि शतों एवं
सामान्य शतों का प्रिावी एवं संतोिजनक अनुपालन न करने पर बोडथ
द्वारा भनगथत अनापभत्त प्रमाण पत्र भनरस्त कर भदया जाएगा। बोडथ का
अभधकार सुरभक्षत है भक अनापभत्त की शतों में संशोधन भकया जाय
अथवा भनरस्त कर भदया जाय। उपयुथक्त भवभशि एवं सामान्य शतों के
सम्बन्ध में उद्योग द्वारा इस कायाथलय में भदनांक 31.02.2017
तक प्रथम अनुपालन आख्या अवश्य प्रेभित की जाए। अनुपालन
आख्या भनयभमत प्रेभित की जाए अन्यथा अनापभत्त प्रमाण पत्र भनरस्त
िी भकया जा सकता है।

िवदीय

सदस्य सभचव"

(6) A bare perusal of the aforesaid
order
dated
04.01.2017
reveals
that
conditions enumerated in the NOC given
by the District Magistrate, Unnao vide
order dated 21.05.2015 shall be complied
with in letter and spirit; the period of
aforesaid consent/NOC to establish the
slaughterhouse was two months; the
petitioner ought to submit first compliance
by 31.02.2017; and further progress report
was to be submitted from time to time.

(7) It would be pertinent to mention
that in the interregnum, in compliance of
the directions issued by the Hon'ble Apex
Court in Writ Petition (C) No.330 of 2001
(Common Cause Vs. Union of India &
Ors.), Writ Petition No. 44 of 2004,
Contempt Petition No. 124 of 2015 and
connected Writ Petition (C) No. 309 of
2003 (Laxmi Narain Modi Vs. Union of
India and Ors.) on 17.02.2017, the State
Government had issued the Government
Order dated 07.07.2017 containing 24 point
compendium
regarding
various
compliances.

(8) Apparently, after lapse of more
than two years i.e. on 12.06.2019, the
petitioner, after creation of all requisite
paraphernalia and after establishing the
industry, applied for grant of 'consent to
operate' (CTO) under Sections 25 (1) (b)
and 26 of the Water Act, 1974 and under
Section 21 read with section 22 of the Air
Act, 1981, which was rejected by means of
order dated 06.11.2019 inter alia on the
ground that the petitioner had not yet
submitted
the
required
clarification/
information regarding the compliance of 24
points compendium as per Government
Order dated 07.07.2017. This order dated
06.11.2019 had attained finality as it was
never assailed by the petitioner. However,
on 06.06.2020, the petitioner again applied
6 All. M/S AL Haq Food Pvt. Ltd. Vs. State of U.P. & Ors.
911
to the Uttar Pradesh Pollution Control
Board for 'consent to operate' under
Section 25 (1) (b) and Section 26 of the
Water Act, 1974 and Sections 21 read with
Section 22 of the Air Act, 1981, which
again came to be rejected vide impugned
orders dated 11.07.2020, stating that it is
required from the Project Proponent to
submit
the
re-validated
NOCs
from
different departments as well as from the
State Level Committee
according to
Government Order dated 07.07.2017.

(9) The impugned orders record that
the petitioner had not submitted compliance
of different points raised in previous CTO
rejection letter dated 06.11.2019. In respect
of compliance of 24 points compendium,
although the impugned orders record that
the petitioner had submitted NOC of CVO
dated 06.5.2020, NOC from ARTO dated
14.05.2020 and application submitted for
NOC from Food Safety and Standards
Authority, dated 19.05.2020, however it
also records that the petitioner had not
submitted re-validated NOCs from District
Magistrate,
Unnao
and
State
Level
Committee set up for considering grant of
NOC for establishing slaughterhouse units.

(10)
It
is
these
orders
dated
11.07.2020, which are under challenge in
the instant writ petition.

MAINTAINABILITY
OF
THE
WRIT PETITION

(11)
Learned
Senior
Counsel
representing the U.P. Pollution Control
Board has raised a preliminary objection
regarding maintainability of the writ
petition and has contended that the instant
petition
under
Article
226
of
the
Constitution of India is not maintainable in
view of the availability of an alternative
statutory remedy of appeal against the
order of refusal of consent before the
National Green Tribunal under Section 28
of Water Act, 1974 and Section 31 of the
Air Act.

(12) The learned Counsel representing
the petitioner, on the other hand, has made
objection to the aforesaid submission of the
learned Senior Counsel representing the
U.P.
Pollution
Control
Board
and
vehemently argued that the instant writ
petition is maintainable. His submission is
that alternative remedy is not an absolute
bar, rather it is a self-imposed restriction to
be exercised on the well settled principle
that an exercise suffering from want of
jurisdiction, vice of violation of principle of
natural
justice
or
in
violation
of
fundamental right or statutory right, can be
a subject matter of challenge in a writ
petition
under
Article
226
of
the
Constitution of India can be entertained.
According to the learned Counsel, in the
instant case, the impugned orders have
been passed without undertaking any
exercise of inspection etc. as contemplated
under Section 25 (3) of the Water Act, 1974
read with Rule 5 of the U.P. Water (consent
of discharge of sewage and trade effluents)
Rules, 1981 and Section 21 (3) of the Air
Act, 1981 read with Rule 28 of the U.P. Air
(Prevention and Control of Pollution)
Rules, 1983. Therefore, it is the submission
of the learned Counsel that the impugned
orders cannot be termed to have been
passed under Section 25 (2) (b) of the
Water Act, 1974 and under Section 21 (4)
of the Air Act, 1981 as has been
camouflaged by the impugned orders. He
further argued that the principle of natural
justice was not followed by the statutory
authorities before passing of the impugned
orders and as such the same are in violation
of the fundamental rights granted to the
912 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner under Article 19 (1) (c) and
Article 14 of the Constitution of India as no
opportunity of hearing was afforded to the
petitioner before undertaking the impugned
exercise. Hence the instant writ petition
was maintainable before this Court.

(13) To strengthen his submission, he
has placed reliance upon the judgments of
the Apex Court in Radha Krishan
Industries Vs. State of Himachal Pradesh
and others : (2021) 6 SCC 771, M/s
Magadh Sugar & Energy Ltd. Vs. The
State of Bihar & others (Civil Appeal
No.5728 of 2021 decided on 24.09.2021)
and the judgment of this Court in Rajendra
Prasad Upadhyay Vs. State of U.P. and
others (Special Appeal No. 73 of 2012,
decided on 19.03.2012) and Piscesia
Sarvonik Jv LLP through Designated
Partner DLF Corporate Park Haryana
Vs. State of U.P. and others (Criminal
Misc. Writ Petition No. 1008 of 2003,
decided on 15.02.2023).

(14) Both the parties have been heard
at considerable length on the preliminary
issue as to whether the petitioner be
relegated to avail the remedy to file an
appeal under Section 28 of the Water Act
and Section 31 of the Air Act before the
National Green Tribunal or in the presence
of such remedy, whether the instant writ
petition is maintainable or not.

(15)
Having
heard
the
learned
Counsels on the issue of preliminary
hearing, this Court is of the view that the
existence of alternative remedy is not an
absolute bar, is a legal proposition, which
does not require any detailed discussion. It
is settled law that while a High Court
would normally not exercise its writ
jurisdiction under Article 226 of the
Constitution of India, if an effective and
efficacious alternative remedy is available
and the existence of an alternate remedy
does not by itself per se bar the High Court
from exercising its jurisdiction in certain
contingencies. This principle has been
crystallized by the Hon'ble Apex Court in
Whirpool Corporation v. Registrar of
Trademarks, Mumbai : (1998) 8 SCC 1
and Harbanslal Sahni v. Indian Oil
Corporation Ltd :(2003) 2 SCC 107. In
Radha Krishan Industries v. State of
Himachal Pradesh & Ors (supra),
wherein the Hon'ble Apex Court has
summarized the principles governing the
exercise of writ jurisdiction by the High
Court in the presence of an alternate
remedy. The Apex Court has observed as
under :-

"28. The principles of law which
emerge are that:

(i) 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;

(ii) The High Court has the
discretion not to entertain a writ petition.
One of the restrictions placed on the power
of the High Court is where an effective
alternate remedy is available to the
aggrieved person;

(iii) Exceptions to the rule of
alternate remedy arise where

(a) the writ petition has been
filed
for
the
enforcement
of
a
fundamental right protected by Part III of
the Constitution; (b) there has been a
violation of the principles of natural
justice; (c) the order or proceedings are
wholly without jurisdiction; or (d) the vires
of a legislation is challenged;

(iv) An alternate remedy by itself
does not divest the High Court of its
powers
under
Article
226
of
the
6 All. M/S AL Haq Food Pvt. Ltd. Vs. State of U.P. & Ors.
913
Constitution in an appropriate case though
ordinarily, a writ petition should not be
entertained when an efficacious alternate
remedy is provided by law;

(v) When a right is created by a
statute, which itself prescribes the remedy
or procedure for enforcing the right or
liability, resort must be had to that
particular statutory remedy before invoking
the discretionary remedy under Article 226
of the Constitution. This rule of exhaustion
of statutory remedies is a rule of policy,
convenience and discretion; and

(vi) In cases where there are
disputed questions of fact, the High Court
may decide to decline jurisdiction in a writ
petition. However, if the High Court is
objectively of the view that the nature of the
controversy requires the exercise of its writ
jurisdiction, such a view would not readily
be interfered with."

(emphasis supplied)

(16) No doubt, the Hon'ble Apex
Court has reserved the residual power of
the High Court to entertain writ petition in
case of enforcement of fundamental rights,
however, the Hon'ble Apex Court has also
held that in case where there are disputed
questions of fact, the High Court would
ordinarily refrain from exercising its writ
jurisdiction. At this juncture, it would be
apt to mention that a three judge Bench of
the Apex Court in Sree Meenakshi Mills
Ltd. v Commissioner of Income Tax :
AIR 1957 SC 49 succinctly explained the
tests for the identification of questions of
fact, questions of law and mixed questions
of law and facts. The Apex Court observed
that :-

"9. .......To take an illustration,
let us suppose that in a suit on a
promissory note the defence taken is one of
denial of execution. The court finds that the
disputed signature is unlike the admitted
signatures of the defendant. It also finds
that the attesting witnesses who speak to
execution were not, in fact, present at the
time of the alleged execution. On a
consideration of these facts, the court
comes to the conclusion that the promissory
note is not genuine, Here, there are certain
facts which are ascertained, and on these
facts, a certain conclusion is reached which
is also one of fact.

10. In between the domains
occupied respectively by questions of fact
and of law, there is a large area in which
both these questions run into each other,
forming so to say, enclaves within each
other.
The
questions
that
arise
for
determination in that area are known as
mixed questions of law and fact. These
questions involve first the ascertainment of
facts on the evidence adduced and then a
determination of the rights of the parties on
an application of the appropriate principles
of law to the facts ascertained. To take an
example, the question is whether the
defendant has acquired title to the suit
property by adverse possession. It is found
on the facts that the land is a vacant site
that the defendant is the owner of the
adjacent. residential house and that he has
been drying grains and cloth and throwing
rubbish on the plot. The further question
that has to be determined is whether the
above facts are sufficient to constitute
adverse possession in law. Is the user
continuous or fugitive? Is it as of right or
permissive in character? Thus, for deciding
whether the defendant has acquired title by
adverse possession the court has firstly to
find on an appreciation of the evidence
what the facts are. So far, it is a question of
fact. It has then to apply the principles of
law regarding acquisition of title by
adverse possession, and decide whether on
the facts established by the evidence, the
914 INDIAN LAW REPORTS ALLAHABAD SERIES
requirements of law are satisfied. That is a
question of law."

(17) Therefore, the test that is to be
applied for the determination of a question
of law is whether the rights of the parties
before the Court can be determined without
reference to the factual scenario. In this
case, as has been argued, refusal to grant
'consent to operate' by means of the
impugned orders dated 11.07.2020 is
violative of right to occupation, trade and
business as guaranteed under Article 19 (g)
of the Constitution of India, particularly the
background of the fact that the petitioner
has a right to run the business in respect of
which the permission to establish the unit
was accorded by U.P. Pollution Control
Board by means of letter dated 04.01.2017.
Apparently the issues raised by the
petitioner are questions of law which can
be decided upon a comprehensive reading
of various provisions of Water Act, 1974,
Air Act, 1981 and other provisions of the
Act as well as various Government Orders
and legal propositions on the issue to grant
of 'consent to operate' the modern
slaughterhouse. Thus, we are of the
considered opinion that the questions raised
by the petitioner can be adjudicated without
delving upon any factual dispute. Thus, we
proceed to hold the instant petition
maintainable under Article 226 of the
Constitution of India.

(18) For the reasons aforesaid, we are
persuaded to entertain the instant writ
petition while rejecting objection regarding
maintainability of the writ petition raised
by the learned Senior Counsel representing
the U.P. Pollution Control and the learned
Counsel representing the State.

SUBMISSIONS OF THE PARTIES
ON MERIT OF THE CASE

(19) Challenging the impugned orders
by which 'consent to operate' under Section
25/26 of the Water Act, 1974 and 21/22 of
Air Act, 1981 has been refused, learned
Counsel for the petitioner has contended
that Government Order dated 07.07.2017
was issued in furtherance of judgment and
order dated 17.02.2017 passed by the Apex
Court in Writ Petition (C) No. 330 of 2021
(Common Cause A Regd. Society Vs. Union
of India and others), requiring the Central
Government
to
issue
directions
in
furtherance of recommendation made by
the Committee appointed by the Apex
Court. The said Government Order dated
07.07.2017
supersedes
some
of
the
provisions of Government Order dated
26.11.2014, which stood irrelevant in view
of 24 points compendium.

(20)
Learned
Counsel
for
the
petitioner
has
submitted
that
the
applicability
of
the
compendium
enumerated in the Government Order dated
07.07.2017 is to be categorized mainly
under the three heads viz. (i) pre-slaughter;
(ii)
during
slaughter;
and
(iii)
post
slaughter. All the conditions as stipulated in
the compendium pertaining to (i) preslaughter as mentioned above, have already
been complied with by the petitioner,
however, condition pertaining to aforesaid
(ii) during slaughter and (iii) post-slaughter
will be complied with only after the unit of
the petitioner is permitted to be made
functional and operational after grant of
'consent to operate' by the State Pollution
Board. He argued that the Government
Order dated 07.07.2017 does not provide
the steps to be taken for pre-establishing
consent
or
pre-operational
or
postestablishing consent during the operation of
the Government Order dated 26.11.2014.
He submits that the petitioner's unit has
already been established prior to 2017 and
6 All. M/S AL Haq Food Pvt. Ltd. Vs. State of U.P. & Ors.
915
certain permission can be obtained only
while operating the unit. Thus, the
Government Order dated 07.07.2017 does
not operate retrospectively, particularly as it
provides for modernizing of already
operational
industries
and
also
for
establishing new industries on the basis of
latest livestock census.

(21)
Learned
Counsel
for
the
petitioner has further submitted that 24
points compendium enumerated in the
Government
Order
dated
07.07.2017
relates to various statutory prescriptions,
most of which relate to the operational
stage of meat industry. According to the
learned Counsel, some of the statutory
prescriptions as contained in some of the
statutes also relate to establishment stage
which are the same as provided as
conditions of consent for establishment
dated 04.01.2017 given by the U.P.
Pollution Control Board to the petitioner.
Thus, Government Order dated 07.07.2017
does not require that the NOC issued earlier
by the District Magistrate, Unnao or by the
State Level Committee would require any
re-validation. In any case, the learned
Counsel submits that the NOC granted by
the District Magistrate or the State Level
Committee
having
no
expiry
period
mentioned therein, the issuance of the
impugned orders are wholly arbitrary and
illegal.

(22)
Placing
reliance
upon
the
judgments of the Apex Court in State of
Madhya
Pradesh
and
others
Vs.
Tikamdas : (1975) 2 SCC 100, Chairman
Railway Board and others Vs. C.R.
Rangadhamaiah and others : (1976) 6
SCC 623, J.S. Yadav Vs. State of U.P. :
(2011) 6 SCC 570, Canara Bank and
another Vs. M. Mahesh Kumar : (2015) 7
SCC 412, Bharat Sanchar Nigam Ltd.
Vs. Tata Communication Ltd. : (2022)
SCC On-Line SC 1280, learned Counsel
for the petitioner has submitted that a
Government Order otherwise also cannot
have any retrospective operation nor can it
override any statutory prescriptions. It also
cannot divest a person of any already
vested or accrued right, more particularly in
the case in hand, wherein more than Rs.
200 Crore have been already invested by
the petitioner in establishing the meat
industry in furtherance of NOC/consent for
its establishment having been granted by
the State functionaries.

(23)
Learned
Counsel
for
the
petitioner, thus, has submitted that it is not
the case of the respondents that the
petitioner's
industry
is
lacking
any
requirement for establishment of meat
industry as per conditions imposed vide
consent
for
establishment,
dated
04.01.2017. He submits that the adherence
to
all
other
statutory
conditions
as
mentioned in the statutes comprising 24
points compendium are to be checked and
verified only after the industry comes into
operation. In this backdrops, his submission
is that the impugned orders are wholly
arbitrary, illegal and unconstitutional.

(24) The learned Counsel for the
petitioner addressing to the plea of the
respondents that the petitioner has not
challenged the order dated 30.07.2020
rejecting the request of reviewing the
impugned order dated 11.07.2020, has
placed reliance upon the judgment of the
Apex Court in DSR Steel (Private)
Limited Vs. State of Rajasthan and
others : (2012) 6 SCC 782 and Bussa
Overseas and Properties Private Limited
and another Vs. Union of India : (2016) 4
SCC 696 and has argued that the order
dated 30.07.2020 need not to be challenged
916 INDIAN LAW REPORTS ALLAHABAD SERIES
as doctrine of merger does not stand
attracted in a situation where prayer for
review has been refused.

(25) So far as prayer being made on
behalf of the U.P. Pollution Control Board
for deferring of the hearing the writ petition
in view of the order dated 03.05.2023
passed by National Green Tribunal in O.A.
No. 879 of 2012 (IA No. 38 of 2022) is
concerned,
learned
Counsel
for
the
petitioner has submitted that the order
dated 03.05.2023 passed by the National
Green Tribunal, Principal Bench, New
Delhi in O.A. No. 879 of 2022 (Gauri
Maulekhi Vs.