Appellants: Orissa State (Prevention and Control of Pollution) Board Vs. Respondent: Orient Paper Mills and Anr. Decided On: 10.03.2003

IN THE SUPREME COURT OF INDIA

Appellants: Orissa State (Prevention and Control of Pollution) Board Vs. Respondent: Orient Paper Mills and Anr. Decided On: 10.03.2003

Hon'ble Judges:
Brijesh Kumar and Ar. Lakshmanan, JJ.

This is an appeal preferred by the Orissa State (Prevention and Control of Pollution) Board (for short, "Board"), against the judgment of the Orissa High Court passed in Criminal Revision, upholding the order passed by the Addl. Sessions Judge Rourkela, quashing the charges framed against the respondent under Section 37(1) of the AIR (Prevention and Control of Pollution) Act, 1981 (for short “the Act”).

According to the prosecution, the respondent Orient Paper Mills Barajraj Nagar, Dist., Sambalpur, engaged in manufacturing of Paper and Paper  Board Caustic Soda and Chlorine etc. is situate in an area which falls within the air Pollution Control Area, as per Gazetteer Notifications. The consent was granted to the respondent by the Board, on 7.3.88 which was valid up to  31.3.89, and it was renewed up to 31.3.91. It was found that the respondent was emitting the air pollutants in excess of tolerance limit prescribed in respect of SPM (suspended particulate matter). According to the Board the respondent failed to comply with the consent condition thereby committed an offence punishable under Section 37(1) of Air Prevention and Control Pollution) Act, 1981. Hence a compliant was filed in the court of SDJM Rourkela by the Board against the Respondents. 

The SDJM on 7.10.95 framed charges against the respondents under Section 37(1) of the Act for having not followed the provisions contained in Sections 21 and 22 of the Act. The respondent, feeling aggrieved, filed a Criminal Revision before the Sessions Court for setting aside the order framing the charge, on the ground that there was no evidence to show that the area in which the industry-respondent is located is in area declared in accordance with law viz. Section 19 of the Act as Air Pollution Control Area. The relevant part of Section 19 reads as follows:

"19. Power to declare air pollution control areas - (1) The State Government may, after consultation with the State Board, by notification in the Official Gazette, declare in such manner as may be prescribed any area or areas within the State as air pollution control area or areas for the purposes of this Act.

 The respondent took the plea that in absence of rules prescribing the manner for declaration of an area as Air Pollution Control Area, the State Government illegally notified the area as such.

Sessions Judge set aside the order passed by the Magistrate and allowed the revision, taking the view that the State Government could notify an area as Air Pollution Control Area only in the manner prescribed under the Rules. In absence of rules it could not be done. Therefore there was no prima facie case against the Respondent for violation of Section 21 and 22 of the Act. The order passed by the Addl. Sessions Judge has been upheld by the High Court with an observation that there was no illegality or irregularity in the order.

As such the present appeal was brought before the S.C. The S.C. observed that under Section 19 the State Government is empowered to declare any area within the State as an Air Pollution Control Area by notification in the official gazette. It may however be after consultation with the Board and in the manner as may be prescribed. According to the respondent the State government has not prescribed any manner in which the Air Pollution Control Area is to be declared as such by Notification in the Official Gazette. The plea of the appellant however is that Notifications have been issued by the State Government in due exercise of its powers vested under Section 19 of the Act and published in the Official Gazette from time to time, which do comply with Section 19 of the Act.

The S.C. hear observed that, “Section 19 says,….such manner as may be prescribed” and “not in the manner prescribed” or “…in the prescribed manner”. Thus in case manner is not prescribed under the Rules, there is no obligation or requirement to follow any, except whatever the provision itself provides viz. Section 19 in the instant case which is also complete in itself even without any manner being prescribed. It would thus not be correct to say that simply because the rules have not been framed prescribing the manner it would  render the Act inoperative. The area was notified as air pollution control area by the State Government as authorized and provided by virtue of the powers conferred under Section 19 of the Act. The declaration is provided to be made by means of a notification published in the official gazette. No other manner is prescribed nor exists. The relevant notifications issued by the government cannot be said to be contrary to any rules in existence as framed by the Government. The respondent had knowledge of the notification and had also applied for consent of the Board which was granted to the respondent. The whole working and functioning of the Act which is meant for controlling the air pollution cannot be withheld and rendered nugatory only for the reason of absence of the rules prescribing the manner declaring an air pollution control area which otherwise is provided to be notified by publication in an official gazette which has been done in this case.

Accordingly the court allowed the appeal and set aside the order passed by the learned Additional Session Judge in revision and the order of the High Court affirming the same.