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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.