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Judgment
By consent of learned counsel for the parties, this Appeal and the writ petition (OWP 96/2017) is taken up for final disposal together.
The Appellant - writ petitioner, is engaged in the business of crushing stones. Earlier there was a complaint against his Unit and a direction was
issued by this Court allowing the Appellant to continue his business of stone crushing. Thereafter, the Executive Engineer, Flood Control Division,
Anantnag, issued Final Notice bearing No. FCD/Ang/16/2548-49 dated 29th December, 2016.
Aggrieved by the said notice, the petitioner has filed the writ petition challenging the notice as arbitrary, illegal, contrary to law and without
jurisdiction. Interim application was also filed, seeking protection, which was declined by the learned Single Judge. Hence this Appeal.
We have heard learned counsel for the parties. Cause of action for this litigation apparently is the action taken by the authority to close the Unit
relying on the provisions of Water Resources (Regulation & Management) Act 2010. Petitioner also pleads that no opportunity was given to him
to explain his stand that the proceedings are bad in law, illegal and arbitrary.
A reading of the notice makes it clear that the petitioner has no other option but to close the Unit. The Notice reads as under :
Government of Jammu and Kashmir
OFFICE OF THE EXECUTIVE ENGINEER FLOOD CONTROL DIVISION
ANANTNAG.
FINAL NOTICE
No. FCD/Ang/16/2548-49
Dated : 29-12-2016
Mr. Ghulam Qadir Lone,
S/O Muma Lone,
R/O Shankerpora Anantnag.
It is to inform that you have violated the Water Resources (Regulation & Management) Act 2010 by way of installation of Crusher
Plant on Sandran Nallah at Shankerpora without seeking proper NOC from this office.
As such you are directed to immediately remove Crusher Plant on your own at the said spot within a period of 15 days positively and
illegal extraction may be stopped. Whatsoever forthwith or otherwise stern action shall be initiated against you which may please be
noted.
Sd/
Executive Engineer
Flood Control Division Anantnag.
The notice supra does not spell out that the Appellantpetitioner has an opportunity of defending his claim for running the Unit and plead that it is
not barred by law. To this extent the plea of violation of principles of natural justice is established.
In this view of the matter, we are inclined to accept the plea of petitioner that he should have been heard at the first instance. An opportunity to
explain as to why his Unit will not fall within the provisions of Water Resources (Regulation & Management) Act 2010 should have been given to
him.
In this case, what is challenged is a notice and the petitioner can be permitted to submit his explanation and statement of defence. The authority
will consider the request one way or the other. Hence while declining to interfere with the final notice, we dispose of the Appeal & writ petition,
giving the Appellant -petitioner opportunity to go before the authority and explain his stand as to how the provisions of aforementioned Act will not
apply to his Unit and as to why it should not be closed.
The Appellant - petitioner is entitled to file a detailed Reply before the respondents within one week from receipt of this order, which shall be
treated as Reply to the Show Cause Notice. Respondents shall grant an opportunity of personal hearing to the petitioner and pass a final order on
merits within four weeks thereafter. If the Appellant - petitioner is aggrieved by the decision taken by the respondents, he is entitled to challenge
the same as per law.
LPA as also writ petition shall, accordingly, stand disposed of along with connected IAs.