ORISSA STATE (PREVENTION AND CONTROL OF POLLUTION) BOARD V. ORIENT PAPER MILLS
(2003) 10 SCC 421
FACTS
Orient Paper was engaged in manufacturing of paper and paperboard, caustic soda and chlorine, and was situated in an area which falls within the air pollution control area.
The determination of air pollution control areas is done by Official Gazette, and it was indicated in three different Official Gazettes dated 20.7.1984, 5.8.1986 and 17.3.1988 that Orient Paper was manufacturing such products within the air pollution control area.
Consent was granted to Orient Paper by the Board to continue manufacture on 7.3.1988 valid till 31.3.1989 and this was renewed up to 31.3.1991.
It was observed that Orient Paper was emitting excess Suspended Particle Matter (“SPM”) over and above the tolerance limit, particularly in two Boilers (9 & 10) within the factory.
A second analysis regarding the offending emission was communicated to Orient Paper and the industry was inspected. It was found that there was still a concentration of SPM exceeding the standard prescribed for the purpose.
Due to these findings, the Board argued that the respondent failed to comply with the “consent” condition and thereby committed an offence under S 37(1) of the Act.
The Sub-divisional Judicial Magistrate framed charges on 7.10.1995, stating that Orient Paper had violated s21 and 22 of the Act,
Orient Paper, feeling aggrieved, filed a criminal revision before the Sessions Court, stating that they could not have violated the Act on the grounds that there was no evidence that the area in which the industry is located is an air pollution control area, being declared in accordance with s19 of the Act. They argued that since there was an absence of rules prescribing the manner for declaration of an air pollution control area, the State Government had illegally notified the area as such. This argument held good in the Sessions Court,
The learned Sessions Judge set aside the order of the Judicial Magistrate, which was upheld by the Orissa High Court.
The holding of the Orissa High Court has been challenged in the Supreme Court of India.
ISSUE
Whether, as long as the manner is not prescribed under rules for declaration of an area as an air pollution control area, a valid notification under s19(1) of the Act can be published or not ?
HELD
Interpreting the meaning of “as may be prescribed” under s19(1) of the Act, the Court opined that it does not seem to be correct to deprive the State Government of its power to allocate air pollution control areas through publication through the Official Gazette.
The Court gave weightage to the framing of “as may be prescribed and stated that this expression plays a role in the interpretation of the provision. It specifically looked at the operation of the word “as” within the section. It stated that the manner is dependent on “as” may be prescribed, and if it is not prescribed there is no manner to be followed. So only when Rules are supplied, do they have to be applied for the allocation of air pollution control areas. Therefore, “as may be prescribed” would mean “if any” prescribed.
It was determined that there is no obligation to follow unless it is prescribed in s19 and merely by the absence of Rules, the State Government would not be divested of its powers to notify an area through Official Gazette as an air pollution control area.
Orient Paper had contended that the State Government did not have the authority to allot air pollution control areas without rules, and relied on State of UP v. Jogendra Singh where it was stated that “may” can be construed as “shall”, which would mandate the presence of rules for the allocation of air pollution control areas. This argument was rejected as these cases do not deal with a manner of publication, which is provided in the provision itself and the publication has been notified in the same manner as provided in S-19 of the Act.