2003 Supreme(SC) 307

2003(2) Supreme 592
SUPREME COURT OF INDIA
(From Orissa High Court)
Brijesh Kumar and A.R. Lakshmanan, JJ.
Orissa State (Prevention and Control of Pollution) Board -Appellant
versus
M/s. Orient Paper Mills & Anr. -Respondents
Criminal Appeal No. 331 of 2003
(Arising out of SLP (Crl.) No. 3180 of 2001)
Decided on 10-3-2003
Counsel for the Parties :
For the Appellant : J.R. Das, G. Biswal and S. Mishra, Advocates.
For the Respondents : P.N. Gupta and Ms. Happy, Advocates.

IMPORTANT POINT
It is not correct to say that simply because no rule is framed under Section 54(2)(k) of the Air (Prevention and Control of Pollution) Act, 1981 State Government could not validly notify an area as Air Pollution Control Area under Section 19(1) of the Act.

Headnote:Air (Prevention and Control of Pollution) Act, 1981-Section 37(1)-Charge under for violation of Sections 21 and 22-Section 54(2)(k) prescribing rule making power regarding the manner in which any area may be declared as air pollution control area under Section 19(1)-No rule framed-Notification issued under Section 19(1) itself declaring Air Pollution Control Area-ASJ and High Court holding that Government could not notify an area as Air Pollution Control Area under Section 19(1) in the absence of Rule under Section 54(2)(k)-Appeal to Supreme Court-Whether, as long the manner is not prescribed under the Rules for declaration of an area as Air Pollution Control Area, as a valid notification under Section 19(1) of the Act can be published in the Official Gazette or not? (Yes)-Appeal allowed accordingly.

       Held : 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. (Paras 12 & 13)

       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 an 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. (Para 19)

       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. (Para 20)

       Held consequently : 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. (Paras 21 & 22)