Full Judgment Text
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CASE NO.:
Appeal (crl.) 331 of 2003
PETITIONER:
Orissa State (Prevention and Control of Pollution) Board
RESPONDENT:
M/s Orient Paper Mills and Anr.
DATE OF JUDGMENT: 10/03/2003
BENCH:
Brijesh Kumar & A.R.Lakshmanan
JUDGMENT:
JUDGMENT
(Arising out of S.L.P. (Crl.) No. 3180 of 2001)
BRIJESH KUMAR J,
Leave granted.
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 Brajraj 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
Gazette Notifications Nos. 1292 dated 20.7.84, No. 1021 dated 5.8.86
and No. 462 dated 17.3.88. 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
No.1 was emitting the air pollutants in excess of tolerance limit
prescribed in respect of SPM (suspended particulate matter)
particularly in boilers No. 9 and 10. The analysis report in regard to
the offending emission was communicated to the respondent and the
industry was also inspected in connection thereof. Samples of
emission were collected again and the Board found that there was
still higher concentration of S.P.M. exceeding the standard prescribed
for the purpose. The report of the 2nd analysis was also forwarded
to the industry. 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 of
Pollution) Act, 1981. Hence a complaint 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 No.1 is located is an area declared in accordance with law
viz. Section 19 of the Act as Air Pollution Control Area. The plea of
the respondent that in absence of rules prescribing the manner for
declaration of an area as Air Pollution Control Area, the State
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Government illegally notified the area as such, does not seem to
have found favour with the learned Magistrate on the ground that
the word used in Section 19 is "may" and not "shall" therefore it was
not mandatory for the State to prescribe the manner for declaring an
area as Air Pollution Control Area. The learned Addl.Sessions Judge
however 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.
We may at this stage peruse the relevant provisions of the
law. Section 21 of the Act provides that subject to the provisions of
the said Section no person shall establish or operate any industrial
plant in an air pollution control area without previous consent of the
State Government. An industry which is functioning since before the
declaration of the area as Air Pollution Control Area, it shall apply to
the Board for consent within the period prescribed for the purpose.
Section 22 provides as under:-
"Section 22 - Person carrying on industry, etc.
not to allow emission of air pollutants in excess of
the standards laid down by the State Board No
person operating any industrial plant in any air pollution
control area shall discharge or cause or permit to be
discharged the emission of any air pollutant in excess of
the standards laid down by the State Board under clause
(g) of the sub section 1 of Section 17."
Section 19 empowers the State Government to declare an area 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.
(2) The State Government may, after consultation
with the State Board by notification in the official
Gazette.-
(a) after any air pollution control area whether by way
of extension or reduction.
(b) Declare a new air pollution control area in which
may be merged one or more existing air pollution
control areas or any part or parts thereof.
(3) . . . . . . . . . . . .
(4) . . . . . . . . . . . .
(5) . . . . . . . . . . . .}"
We thus find that essentially 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
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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.
We may at this juncture also refer to Section 54 of the Act
which relates to the power of the State Government to make Rules.
It reads as under:-
"54- Power of State Government to make
rules (1) Subject to the provisions of sub section 3,
the State Government may, by notification in the Official
Gazette, make rules to carry out the purposes of this Act
in respect of matters not falling within the purview of
Section 53.
2. In particular, and without prejudice to the
generality of the foregoing power such rules may
provide for all or any of the following matters,
namely;-
(a) .. . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . .
(k) the manner in which any area or areas may be
declared as air pollution control area or areas under
sub section (1) of Section 19.
. . . . . . . . . . . . . .
. . . . . . . . . . . . . ."
The word "prescribed" has been defined under Clause (n) of
Section 2 of the Act as follows:-
"n "prescribed" means prescribed by Rules made
under this Act by the Central Government or, as the case
may be, the State Government."
Therefore the manner in which air pollution control area is to
be declared as such, would be prescribed by Rules, framed for the
purpose, by the State government in exercise of its powers under
Section 54 (2)(k) of the Act. The Notification notifying the area is to
be published in the Official Gazette. The factual position which
admits of no doubt is that Rules have not been framed by the State
Government under Section 54 (2)(k) of the Act prescribing the
manner in which Air pollution Control Area is to be declared. The
appellant, regarding fulfillment of the requirement under sub section
1 of Section 19 of the Act, has drawn the attention of the Court only
to the Gazette Notifications issued by the State Government under
Section 19(1) of the Act . Copies of such Notifications have also been
annexed along with the appeal. The first notification is dated
6.6.84, it is reproduced below:-
" THE ORISSA GAZETTE
Extraordinary
Published by Authority
No. 1292 Cuttack, Friday, July 20 1984/Asadha 29, 1906
Department of Science Technology and Environment
Notification
The 5th June 1984
No. 556- Env. III-3/84-STE- In exercise of powers under
Section 19(1) of the Air (Prevention and Control of
Pollution) Act, 1981 the governor is pleased to declare
the following areas and the premises of the following
industries as Air Pollution Control Area within the State
for the purposes of the said Act:-
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1. Areas declared as Air Pollution Control Areas:
X x x x x x x x x x
2. Premises of Industries declared as Air Pollution
Control Area
1 . . . . . . . . . . .
to
32 . . . . . . . . . . . . . .
33. Orient Paper Mills, Brajrajnagar, Sambalpur district
xxx xxx xxx xxx
35. Charge Chrome Plant of FACOR, Randia, Bhadrak
Balasore District.
By Order of the Governor
G.B.Mu
Addl. Secretary to Government"
In supersession of the above notification, the other notification
dated 8.7.86 has been published, which is as under:-
"THE ORISSA GAZETTE
Extraordinary
Published by Authority
No. 1021 Cuttack, Tuesday, August 5, 1986/Sravana 14,
1908
Department of Science Technology and Environment
Notification
The 8th July, 1986
No. 10985-Enn. III-5/86-STE- In exercise of powers
under Section 19(1) of the Air (Prevention and Control of
Pollution) Act, 1981 and in supersession of notification
No. 5564- Env. III-3/84-STE, dated the 6th June, 1984 the
Governor is pleased to declare the areas and premises of
all the following industries as Air Pollution Control Areas
within the State of Orissa for the purposes of the said Act.
1. Premises of major, medium and small scale
industries old and new and the premises of
industries states under following categories of
industries specified under the Air Pollution Control
Act.
i) . . . . . . . .
to
xi) . . . . . . . .
xii) Paper and pulp (including paper products) industries i
xiii) . . . . . . . . . . . .
to
xvi) . . . . . . . . . . .
By order of the Governor
K.K. Patnaik
Dy. Secretary to Government"
Yet another Notification issued in supersession of the previous
Notifications dated 27/29th February, 1988, is as follows:-
"THE ORISSA GAZETTE
Extraordinary
Published by Authority
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No. 462 Cuttack, Thursday, March 17, 1988/ Falguna 27,
1909
Department of Science Technology and Environment
Notification
The 27/29th February, 1988
No. 3044-ENV-1-3/88-STE. In exercise of the powers
conferred by Sub-Section (1) of Section 19 of the Air
(Prevention and Control of Pollution Act, 1981 (14 of
1981) and in supersession of the notification of the
Government of Orissa Deptt. Of Science, Technology and
Environment No. 10985/STE, dated 8th July, 1986 the
State Government after consultation with the State Board,
do hereby declare the areas specified in the Schedule
given below as air Pollution Control areas within the State
of Orissa for the purposes of the said Act, namely:
SCHEDULE
1. Master Plan areas coming under the Cuttack
Development Area constituted under sub-section 1
of section 3 of the Orissa Development Authorities
Act, 1092.
2. Master Plan Areas coming under the Bhubaneswar
Development Area constituted under sub-section
(1) of section 3 of the Orissa Development
Authorities Act, 1982.
3. Master Plan areas coming under the Greater
Sambalpur Improvement Trust constituted under
section 7 of the Orissa Town Planning and
Improvement Trust Act, 1956.
4. Master Plan Areas coming under Rourkela
Improvement Trust constituted under section 7 of
the Orissa Town Planning and Improvement Trust
Act, 1956.
5. Master Plan Areas coming under Talcher, Angul
Meramudali Regional Improvement Trust
constituted under Section 7 of the Orissa Town
Planning and Improvement Trust Act, 1956.
6. The areas of all Industrial Estates of the State.
7. The premises of all Large Scale and Medium Scale
Industries which are not covered under items 1 to 6
above.
By order of the Governor
R.C. Samal
Commissioner-cum-Secy.to Government"
It is submitted on behalf of the appellant that the Gazette
Notifications issued from time to time cover the respondent
throughout the relevant period.
The question for consideration is, as to whether, as long the
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manner is not prescribed under the Rules for declaration of an area
as Air Pollution Control Area, a valid Notification under Section 19(1)
of the Act can be published in the Official Gazette or not.
So far the statutory provision is concerned, the Act under
Section 19 vests the State Government with power to notify any
area, in an official gazette, as Air Pollution Control Area, but to say
that exercise of such power is solely dependent upon framing of the
rules prescribing the manner in which an area may be declared as air
pollution control area, does not seem to be correct. Section 19 of the
Act would read as follows by omitting the words "in such manner as
may be prescribed" which part we put into bracket 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.
(2)------------------
(3)------------------
(4)------------------
Section 19 says " . . . . . . such manner as may be prescribed"
and not "in the manner prescribed". or ". . . . . in the prescribed
manner". The expression used leaves some lever or play in the
working of the provision. We would like to lay emphasis on the use
of the word ‘as’ which is significant. The manner is dependent
upon "as" may be prescribed, if it is not prescribed, there is no
manner available such as to be followed. The meaning of the word
‘as’ has been indicated in "Concise Oxford English Dictionary, Tenth
Edition 2002" amongst others to mean as follows:
"Used in comparison to refer to the
extent or degree of something; used to
indicate by comparison the way that
something happens; during the time of
being" (emphasis supplied)
In "Words and Phrases Permanent Edition 4" 1969 Edition, in general
amongst others, at Page 514 its meaning has been indicated as
follows:
"As" means "to the extent", "in the
manner" and "when" ; and may be
employed to indicate a combination of
time with extent or manner. Moore
v.Coates, D.C. Mun. App., 40
A.2d68,70." (Emphasis supplied)
It is further indicated to mean importing a contingency and at page
520, it is indicated as follows:
"When, importing a Contingency, a devise to
certain children "as" they arrive at the age of
21 means "when" they arrive at such age"
(Emphasis supplied)
Further we find at Page 549 the phrase "as may be prescribed" has
been indicated to mean as follows:
"The phrase "as may be prescribed", in
constitutional amendment authorizing
certain cities to adopt or amend their
charters, subject to such limitations as may
be prescribed by legislature, means that
future legislation, as well as that existing
when city first takes out or amends charter
may limit its action" Vernon’s Ann.
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St.Const. art.11, $ 5. Dry v. Davidson,
TexCiv.App.,115 S.W.2d659,691. (emphasis
supplied)
In "Law Lexicon" by P. Ramanatha Aiyar 2nd Edition Reprint 2000 at
Page 147, it is indicated as under:
"used as an adverb, etc. means like,
similar to, of the same kind, in the same
manner, in the manner in which. It may
also have the meaning of because, since,
or it being the case that; in the character
or under the name of with significance of
in degree; to that extent; so far (Black’s
Law Dictionary)" (emphasis supplied)
In one of the cases decided by this Court, to be referred later in this
Judgment, "as may be prescribed" has been held to mean that "if
any" . It is thus clear that such expression leave the scope for some
play for the workability of the provision under the law. The meaning
of the word "as" takes colour in context with which it is used and
the manner of its use as prefix or suffix etc.. There is no rigidity
about it and it may have the meaning of a situation of being in
existence during a particular time or contingent, and so on and so
forth. That is to say something to happen in a manner, if such a
manner is in being or exists, if it does not, it may not happen in that
manner. Therefore, the reading of the provision under consideration
makes it clear that manner of declaration is to be followed ‘as may
be prescribed’ i.e. "if any" prescribed.
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 as
indicated shortly before to read the provision omitting this part "in
such manner as may be prescribed". Merely by absence of Rules,
the State would not be divested of its powers to notify in official
gazette any area declaring it to be air pollution control area. In case,
however, the Rules have been framed prescribing the manner,
undoubtedly the declaration must be in accordance with such rules.
On the proposition indicated above, a decision reported in AIR
1961 SC page 276 T. Cajee Vs. Jormanik Siem and Anr. would
be relevant. The matter pertained to removal of Seim from the
office namely the Chief Head man of the area in the district council
governed by Schedule VI of the Constitution. The High Court took
the view that the District Council could act only by making a law
with the assent of the Governor. So far as the appointment and
removal from the office of a Seim is concerned, provision contained
in para 3(1) (g) of the Schedule was referred to, which empowered
the District Council to make laws in respect of the appointment and
succession of office of Chief and Headmen. The High Court took
the view that in absence of framing of such a law, there would be
no power of appointment of a Chief of Seim nor for his removal
either. This court negated the view taken by the High Court
observing that "..it seems to us that the High Court read far more
into paragraph 3(1)(g) than is justified by its language. Paragraph
3(1) is in fact something like a legislative list and enumerates the
subjects on which the District Council is competent to make laws. . . .
. . . But it does not follow from this that the appointment or
removal of a chief is a legislative Act or that no appointment or
removal can be made without there being first a law to that effect".
This court found that para 2(4) relating to administration of an
autonomous district, vested in the District Council such powers and
further observed as under:
"The Constitution could not have intended that all
administration in the autonomous districts should
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come to a stop till the Governor made regulations
under paragraph 19(1)(b) or till District Council
passed laws under para 3(1)(g) .Doubtless
when regulations are made . . The
administrative authorities would be bound to follow
the regulations so made or the laws so passed".
It is thus clear from the decision referred to in the preceding
paragraph that the power which vests in an authority would not
cease to exist simply for the reason that the rules have not been
framed or the manner of exercise of the power has not been
prescribed . So far Section 54 of the Act is concerned it only
enumerates the subjects on which the State Government is entitled
to frame rules.
Learned counsel for the appellant relies upon a decision
reported in 1987 (1) SCC page 658 ( B.K. Srinivasan & Ors. vs.
State of Karnataka & Ors. It is on the question of publication of
subordinate legislation in a suitable manner which may or may not be
prescribed and any irregularity in the publication would be curable.
Yet another decision relied upon is reported in 2000 (9) SCC page
461 Union of India and Ors. Vs. Ganesh Das Bhojraj. The
question related to the publication of the notification under the
Customs Act regarding levy of customs duty, publication of the
notice/notification and the manner in which it was to be done.
This court, after considering a number of decisions on the point
concluded as follows: -
"Further in the case of New Tobacco co. the court
relied on the decision in B.K. Srinivasan. In that case (in
para 15) after considering various contentions, the Court
specifically held that where the parent statute prescribes
the mode of publication or promulgation that mode must
be followed. Where the parent statute is silent, but the
subordinate legislation itself prescribes the manner of
publication, such a mode of publication may be sufficient,
if reasonable.
From the aforesaid observations, it is plain and clear
that the decision in B.K. Srinivasan also reiterates that the
noificiation will take effect only when it is published
through the customarily recognised offcial channel,
namely, the Official Gazette. We also agree with the
reasons recorded in Mayer Hans George and hold that
notification under Section 25 of the Customs Act would
come into operation as soon as it is published in the
Official Gazette and no further publication is required.
Hence, the decision rendered in Pankaj Jain Agencies
represents the correct exposition of law on the subject.
The decision rendered in New tobacco Co. followed in
Garware Nylons Ltd. does not lay down the correct law.
We don’t think that the above decisions would be very relevant
or of much assistance to the appellant.
Learned counsel appearing for the respondent referred to a
decision reported in AIR 1963 SC 1618 [State of Uttar Pradesh
Vs. Jogendra Singh] on the point as to when the word ‘may’,
means ‘shall’. It has been held that it depends upon the context of
the use of the word "may". The matter related to referring the case
of government servant to the Tribunal. The relevant provision read as
under: -
"4(1) The Governor may refer to the Tribunal cases
relating to an individual government servant or class of
government servants or government servants in a
particular area only in respect of matters involving
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(a) corruption;
(b) failure to discharge duties properly;
(c) irremediable general inefficiency in a public servant
of more than ten years’ standing; and
(d) personal immorality."
It was held that Governor had a discretion in the matter of
referring case of an individual officer to the Tribunal under sub rule
(1), but whereas sub rule (2) is concerned, it imposes an obligation
on the Governor to grant the request made by a gazetted officer for
referring his case to the Tribunal. It is also observed expression
"may" is often used in deference to the status of the authority upon
which an obligation is cast under the provision. On the basis of this
decision the submission is that the use of word ‘may’ would mean
‘shall’ and manner is necessarily to be prescribed as provided under
Section 19 for declaration of an area as air pollution control area.
Yet another case which has been referred to on behalf of the
respondent is reported in 1977 (2) S.C.C. page 578 [The textile
commissioner of the Government of India and Ors. Vs. Shri
Jagdish Process Pvt. Ltd. and Anr.]. It is also on the meaning to
be assigned to the word "may" and it has been held that in the light
of the context where discretion is conferred upon a public authority
coupled with an obligation the use of the word ’may’ denotes it is
used as ‘shall’. We find that above decisions have no application
whatsoever to the present case. The case in hand does not relate to
manner of "publication" which is very much provided in the provision
itself and the publication has been notified in the same manner as
provided under Section 19 of the Act.
We feel that so far the point relating to the meaning of the
word "may" used under Section 19 of the Act is concerned it is not
relevant for resolving the controversy we are concerned with. Once
the manner is prescribed under the rules undoubtedly the
declaration of the area has to be only in accordance with the manner
prescribed but absence of Rules will not render the Act inoperative.
The power vested under Sec. 19 of the Act, would still be exercisable
as provided under the provision i.e. by declaring an area as air
pollution control area by publication of notification in the official
gazette. Non-framing of Rules does not curtail the power of the State
Government to declare any area as air pollution control area by
means of a notification published in the official gazette. The part of
the provision "in such manner as may be prescribed" would spring
into operation only after such manner is prescribed by framing the
rules under Section 54 (2)(k) of the Act. This view as indicated
earlier, is amply supported by the decision of this Court referred to
above in the case of T. Cagee (supra) which is a decision by a
Constitution Bench of this Court. It has been followed in a
subsequent decision of this Court reported in 1986 (4) SCC P.667,
Surinder Singh Vs. Central Government & Ors. The Central
Government had not framed rules in respect of disposal of property
forming part of the compensation pool as contemplated under the
provisions of the relevant Act. It was claimed by one of the parties
that the authority constituted under the Act had no jurisdiction to
dispose of urban agricultural property by auction sale in absence of
Rules. The contention was repelled with the following observations :
"..Where a statute confers powers on an
authority to do certain acts or exercise power
in respect of certain matters, subject to rules,
the exercise of power conferred by the statute
does not depend on the existence of rules
unless the statute expressly provides for the
same. In other words framing of the rules is
not condition precedent to the exercise of the
power expressly and unconditionally conferred
by the statute. The expression "subject to the
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rules" only means, in accordance with the
rules, if any. If rules are framed, the powers
so conferred on authority could be exercised in
accordance with these rules. But if no rules
are framed there is no void and the authority
is not precluded from exercising the power
conferred by the statute.."
A reference was also made to the decisions of this Court in the cases
reported in AIR 1996 SC p.1942, B.N.Nagarajan Vs. State of
Mysore and AIR 1968 SC P.464, Mysore State Road Transport
Corpn. Vs. Gopinath. Reliance was also placed on 1985 (2) S.C.C
p.16, U.P.State Electricity Board Vs. City Board, Mussoorie.
In view of the discussion held above, in our view it would
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. But it
may be clarified that this is not the reason for taking the view that
we have taken, it is mentioned only by way of an additional fact and
nothing more. 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.
For the foregoing reasons, we allow the appeal and set aside
the order passed by the learned Additional Sessions Judge in revision
and the order of the High Court affirming the same.
The further proceedings in the case to be resumed in the trial
Court in accordance with law on merits which shall not be affected in
any manner by observation, if any, made in this judgment.