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1999 Supreme(Gau) 275
GAUHATI HIGH COURT
J. N. SARMA, J.
Jadav Soap Works and others -Appellant
Versus
Union of India and others -Respondent
Civil Rule No. 850 of 1994
Decided On : 18-08-1999
B. R. Dey and G. K. Dutta, P. G. Barua, A. H. Saikia and A. K. Sarma
The Board's power to issue directions under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 is subject to the provisions of the Act and the Board must comply with the earlier provisions before issuing directions.
Headnote:
AIR POLLUTION - AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 - SECTION 31A - POWER TO GIVE DIRECTIONS - SUBJECT TO THE PROVISIONS OF THE ACT - BOARD MUST COMPLY WITH EARLIER PROVISIONS BEFORE ISSUING DIRECTIONS - ARBITRARY AND HIGH-HANDED EXERCISE OF POWER BY THE BOARD - DIRECTIONS QUASHED.
Fact of the Case:
The petitioner's industry was established in 1948 and was operating without obtaining consent from the Pollution Control Board. In 1993, the Board issued a notice under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981, directing the petitioner to close its industry and disconnect all essential services. The petitioner challenged the notice, arguing that it was issued without giving an opportunity to obtain consent and without any finding regarding pollution.
Finding of the Court:
The court held that the Board's action was arbitrary and high-handed exercise of power. It noted that Section 31A of the Act is subject to the provisions of the Act and that the Board must comply with the earlier provisions before issuing directions. In this case, the Board had not produced any record to show how it arrived at the finding that the petitioner's industry was emitting high black smokes and creating hazards to the inhabitants of the locality.
Issues: 1. Whether the Board's notice under Section 31A was issued without giving an opportunity to obtain consent? 2. Whether the Board's notice was issued without any finding regarding pollution?
Ratio Decidendi: The court held that the Board's notice was issued without giving an opportunity to obtain consent and without any finding regarding pollution. It noted that Section 31A of the Act is subject to the provisions of the Act and that the Board must comply with the earlier provisions before issuing directions. In this case, the Board had not produced any record to show how it arrived at the finding that the petitioner's industry was emitting high black smokes and creating hazards to the inhabitants of the locality.
Final Decision: The court allowed the petition and quashed the Board's notice. It also directed the Board to take appropriate action by following the due process of law and to consider the letter written by the Government of India regarding the exemption of small industries from obtaining consent.
ORDER:- This writ application has been filed to quash the impugned orders/notices dated 16-12-93, 3-2-94 and 16-2-94 (Annexures-1, 5 and 6) to the writ application and with a further direction to the Respondents to forbear from giving effect to the aforesaid orders. Annexure-1 is a notice issued by the Member Secretary, Pollution Control Board, Assam with regard to the Air pollution caused by the industry of the petitioner and there a direction was given under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 as amended up to date. That notice is quoted below :
"Pollution Control Board, Assam
(Science. Technology and Environment Department. Govt. of Assam).
No. WB/T-1117/93-94/5 Dated
Guwahati the 16th Dec. 93.
To,
M/s. Jadav Soap Works,
Kedar Road, Guwahati- 781001.
Subject : Air Pollution Caused by your industry.
Subject : Direction under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 as amended up to date.
Whereas you are engaged and also associated with the Production of Janata Soap in your installation situated at Kedar Road,Guwahati-781001 without obtaining consent from the Board.
Whereas inspite of repeated requests through protracted correspondence from the Pollution Control Board, you have failed to appear with copies of relevant documents leading to the establishment of the unit at Kedar Road, Guwahati-781001.
Whereas you have been running and operating your installation in clear violation of the provision of Acts and Rules.
You are hereby directed as follows :-
i) You shall close your Industry/Installation situated at Kedar Road forth with and report compliance within 22nd Dec. 93.
ii) You are hereby Prohibited to operate and run your installation/industry at Kedar Road.
iii) Your shall not be allowed to restart/reopen your industry/Installation unless you take all the essential and necessary Pollution control measures for running your said Industry.
It is further directed that :-
a) The Assam State Electricity Board shall take immediate steps to stop/disconnect the supply of electricity required for the purpose of running and operating the industry.
AND
A) The Guwahati Municipal Corporation shall take immediate step/disconnect supply of water required for the purpose of running and operating the said industry.
AND
B) The concerned authorities shall stop/ disconnect the supply of all essential services used as required for the purposes of running and operating the said Installation/Industry at Kedar Road.
Please note that in default to comply with the above direction Board shall be compelled to take legal action against you as per provision under the law without any further reference to you.
Yours faithfully,
sd/- C. C. Bora
Member Secretary."
Annexure-5 is a notice dated 3-2-1994 by the Member Secretary with regard to the same by way of reminder and Annexure-6 also is a notice dated 16th Feb 1994 in the same light of Annexure-1.
2. The brief facts are as follows :- In the year 1948 the industry of the petitioners was established by the father of the petitioners No. 2 and 3 at Kedar Road. In the year 1981, Air (Prevention and Control of Pollution) Act, 1981 was passed. On 29-9-92 and 13-10-92 a direction was issued by the Pollution Control Board for consent for the Small scale industries by the Central Govt. This is Annexure-B to the affidavit in-opposition filed by the petitioner against the modification order dated 2-3-94. On 16-12-93 the Respondent No. 4 asked the petitioner to close the industry. That is Annexure-1.
On 22-12-93 the petitioners prayed for time and stated that no opportunity was given to show cause prior to issuance of the letter dated 16-12-93 and prayed for one month time to place its case and time was granted up to 13-1-94 by letter dated 29-12-93. The petitioner by letter dated 12-1-94 stated that it is a tiny/small industry and it manufactures laundry soap by manual method and it is like a cottage industry and no water and air pollution is involved in the proces
