JUDGMENT :

D.M. Patnaik, J. - Puri Hotel at Puri through its manager, petitioner No. 1 assails the order of the Orissa State Pollution Control Board (for short, the 'Board') directing to close down the hotel for allegedly violating the provisions of the Water and Air (Prevention and Control of Pollution) Act, 1974 (Act No. 6 of 1974) (for short, the 'Act').

2. Petitioners' case is, the hotel is a premier hotel of repute carrying on business in hotel industry since last more than 40 years it has been awarded various tophies for its performance in hotel industry. Being a premier hotel of the State, it has taken utmost care to keep the industry free from all types of pollution. Its trade effluent from bath-room and kitchen etc. is driven to the pits dug and from there through its own sewer to the municipal drain.

It is further case of the petitioner that notwithstanding the fact that the petitioner-hotel is not a polluting unit, the Board (opp. party No. 5) under Annexure-1 dated 23-6-1993 and Annexure-4 dated 23-5-1994 asked the petitioner-hotel to apply for consent as required under Sections 25 and 26 of the Act. Accordingly, petitioner No. 1 applied for such consent with requisite fee of Rs. 1000/- under Annexure-5 series dated 7-7-1994 and 20-7-1994 respectively.

On 29-9-1995 under Annexure-12 the Board informed the petitioner that the Public Health Department (Urban) expressed its inability for establishment of the Treatment Plant for Puri town at Banki Muhana and, therefore, the petitioner should install by 31-12-1995 its own treatment and disposal plant to treat its effluent within its premises failing which direction for closure of the hotel would be issued. Since the petitioner could not comply with this direction, the order for such closure was passed on 9-2-1996 under Anexure-15 which is challenged before this Court.

3. The Board filed a counter-affidavit justifying its action in collecting the sample effluent and giving such direction. With regard to the result of the sample collected, in para-15 of the counter the Board took the stand that the samples so collected were sent to the Board's laboratory and on analysis it showed parameter beyond the prescribed limit and, therefore, the unit was directed to treat the effluents before discharging the same to the municipal drain.

4. The main thrust of argument of Mr. Mukherji, learned counsel for the petitioners, is that the direction of the Board to close down the hotel seems to be pursuant to the direction of the Supreme Court in the case of Rajan Deb v. Union of India and Ors. : in writ petition (Civil) No. 16/1991 disposed of on 9-1-1995, In that judgment the Supreme Court directed the State Board to identify all the polluting units in the city of Puri. Before directing closure of the petitioners' unit it was incumbent on the part of the Board to find out if the hotel, in question was in fact a polluting unit so as to keep the Board's direction in consonance with the direction of the Supreme Court. In the absence of such a finding, it is the contention of Mr. Mukherji that the direction is not only against the provisions of the Act, but also unreasonable, arbitrary and unconstitutional. Besides, the learned counsel after drawing the attention of this Court to various provisions of the Act including Sections 22 and 25, strenuously urged that because of serious procedural defect in collecting the samples of the effluent and non-compliance of mandatory provisions of the Act, the action of the Board is unsustainable in the eye of law and is liable to be set aside.

Mr. B.P. Das, learned counsel for the Board, on the other hand, submitted that the sample of trade effluent was collected in presence of petitioner No. 1 who signed the notice for analysis of the effluent. It was given sufficient time to establish its own treating plant at the terminal point. It is further submitted that the action of the Board directing closure of the hotel is in compliance with the direction of the Sup