ORDER
1. Petitioner, a Small Scale Industry, carrying on the business of Pulverising Dolomite stones, has filed this petition challenging the order of the Karnataka State Pollution Board (hereinafter referred to as ‘Board’) dated 4th December, 1985, by which, he is prohibited from operating his industry and directing him to obtain clearance certificate before establishing the same in any other place. This writ petition could have been avoided, if only, the petitioner on his part and the Officers of the Board on their part had adopted a purposeful attitude and were more pragmatic without offending the legal provisions. Human weaknesses being what they are, problem is not without solution.
2. The Air (Prevention and Control of Pollution) Act 1981 (hereinafter called as the “Act”) came into force on 16th May 1981. The Board constituted under Section 4 of the Water (Prevention and Control of Pollution) Act, 1974 is deemed to be the Board for purposes of Prevention of Air Pollution Act. Section 19 requires the State Government, after consulting the Board, to declare certain areas as “Air Pollution Control Area”, for purposes of the Air Pollution Act. The State Government has framed Rules which came into force on 18th November, 1983. Rule 19 in Chapter VI of the Rules requires such declaration to be published in the Official Gazette and at least in two local newspapers having wide circulation in that area. The declaration was published in the Gazette on 30th January 1984, but the publication in two local newspapers was done on 25th June 1984 in “Kannada Prabha” and on 26th June, 1984 in “Deccan Herald”. It was declared that Area bounded by respective boundaries of the Industries specified in the Schedule as Air Pollution Control Area. Item 13, in the Schedule refers to “Ores/Minerals Processing industries including beneficiation, Pelletization etc.” The effect of the declaration was that the area, where the petitioner’s Industry is situated, comes under Air Pollution Control Area. While the notification, in original, was published in the Gazette, what was published in the newspapers was the information, regarding the publication of the notification and the requirement of obtaining consent. Since there is a criticism to the effect that there is no compliance with Rule 19, it is necessary to reproduce the contents of the notification: –
NOTIFICATION (Deccan Herald,
dt. 26-6-84)
“KARNATAKASTATE
POLLUTION CONTROL BOARD,
BANGALORE.
NOTIFICATION
Attention of all the Industrialists and Industries in the State of Karnataka is drawn to the provisions of the Air (Prevention and Control of Pollution) Act, 1981, which is in force in the State of Karnataka. In terms of the provisions of the Act, the Government vide their Notification No. DEE 205 ENV 83, dated 28-1-84 Published in the Gazette extraordinary Dated: Monday 30th January 1984 have declared the area bounded by the respective industries specified in the Schedule appended to the Act as Air Pollution. Control areas in the State of Karnataka. It is also a statutory obligation on the part of all the Industries specified in the Schedule to apply for and obtain a consent for emissions/continuation of emissions from industrial plants under Section 21 of the Act, for which purpose, they have to make an application to the Board in the prescribed form to be accompanied prescribed fees.
Government have also, vide Notification No. DEE 42 ENV 84, dated 3-3-84 published in the Gazette Extraordinary Dated: Tuesday, March 6th 1984, specified 3lst July, 1984 as the date on or before which the consent application shall be made by the industries listed in the schedule situated in an area declared as Air Pollution Control area in the State of Karnataka. Prescribed consent application forms can be had from the Board Office on payment of Rs. 10/- by MO/DD/PO., payable in the name of, Member Secretary of the Board.
It is therefore necessary for all industries specified in the Schedule to apply for and obtain the consent of the Board, for which necessary immediate action may be taken. In case of any further clarifications required, the Board Office may be contacted.
Sd/-
for MEMBER SECRETARY
Karnataka State Pollution Control Board,
6th, 7th and 8th Floors, Public Utility
Buildg. M. G. Road, Bangalore-l.”
The Kannada version of the above notification was published on 25th June. 1984 in “Kannada Prabha”.
3. Section 21(1) of the Act requires the Industrialist to obtain prior consent for operating any industrial plant; proviso to Section 21(2) requires the existing industry owners to apply for consent of the Board; the said proviso reads thus: –
“21. (1) ………………….
(2) ……………………….
Provided that where any person, immediately before the declaration of any area as an air pollution control area, operates in such area any industrial plant for the purpose of any industry specified in the Schedule, such person shall make the application under this sub-section within such period (being not less than three months from the date of such declaration) as may be prescribed and where such person makes such application, he shall be deemed to be operating such industrial plant with the consent of the State Board until the consent applied for has been refused.”
This provision makes it obligatory to prescribe a date, within which an application, for consent has to be made, and on the making of the application, the consent is deemed to have been given, until the same is refused by the Board. After filing such application for consent, the Industry can be operated and such operation shall be deemed to be with the consent of the Board. By notification dated 3rd March, 1984, published in Karnataka Gazette dated 6th March, 1984, the Government prescribed 31st July 1984 as the last date for filing applications for consent. The notification extracted above included this information also. On 11th January 1985 the Board issued a Circular asking the Industrialists to file applications for consent; the relevant direction reads thus:
“You are therefore hereby required to comply with the following:
1) Apply for the consent of the Board in the prescribed form available on application to the Member-Secretary, Karnataka State Pollution Control Board, No. 25, 6th, 7th and 8th Floors, Public Utility Building, M. G. Road, Bangalore-1, on payment of Rs. 10/- and if the forms are required by registered post, an additional Rs. 6-50 may please be sent.
2) It will be necessary in order to make the application for consent, to monitor the emissions as existing from the various sources of emission within the area declared as air pollution control applicable to your industry and furnish the details in the prescribed application form, together with detailed information on any air pollution control equipment currently installed with full technical details of the same.
On receipt of your consent application form containing full details of the nature and sources of emissions, relevant emission standards will be intimated, together with time within which the control equipment will have to be installed.
Each consent application will have to be accompanied by the scale of fees prescribed as per the details furnished in the Annexure Circular." (page. 2) 4. These being the provisions of law and steps taken by the Authorities, the facts of the case are as follows:
On 8th January 1985, the Regional Officer (APC) inspected petitioner’s Factory ; it was noticed that the buildings and fields surrounding the Factory were covered with white dust; which according to the Officer was due to dust emissions from the Factory; Factory had not been provided with Air Pollution Control devices; the people in the area were complaining about the dust emissions. On 16th January 1985, a show cause notice was issued, pointing out the above facts and asking the petitioner to show cause as to why action should not be initiated under Sections 37(l) and (2) of the Act, and, for violating the provisions of the Act, in that he has failed to apply for and obtain consent of the Board. Show cause notice is filed as Annexure-B. On 22nd January 1985 petitioner filed his reply. He contended that he had provided for dust collector; and had planned to insufficient dust collector. In this regard he had placed order with M/s. Nagadevi Machine Industries, Bangalore. Along with the reply, he sent a postal order of Rs. 10/-towards the cost of application form, for consent. He requested for better suggestion for collecting Dust. On 17th October, 1985, the Advocate for the Board, gave notice to the petitioner, alleging that he has not applied for consent and has not paid requisite consent fee. The petitioner promptly gave a reply on 30th October, 1985. He stated that on two occasions the Board had sent the application Form prescribed for consent under Water Pollution Act, instead of the form prescribed tinder the Act. This fact is admitted, but the defense was petitioner had not stated the type of application, in his requisition. This may be a justification on the first occasion, but it cannot be accepted for the second one. It appears from Annexure-II filed by respondent, that Capt. S. Raja Rao, Member Secretary inspected the Factory on 18th and 19th October, 1985 and had discussions with the petitioner. It was specifically stated that on two occasions wrong forms were sent. The measures suggested are:
“(1) Ask the industry to have low key operation and at the same time establish the control equipment already procured to give some relief to the affected people. At the same time a committed programme from the industry will have to be obtained for shifting the industry to its new location in about three to four months’ time. The industry should adhere this time limit irrespective of their commitment.
(2) Alternatively the industry should be prohibited from operation as they have not yet applied for consent and also as the complaint from the public is persisting, action in terms of Sec. 23(2) may have to be initiated against the industry which will force the industry to shift to its new location.”
Again the Factory was inspected on 26-12-1985; it was noted that :
“8. . . . . . .The industry has installed the bag filters, even then it was observed the surrounding area was affected by air, pollution, sufficient draft is not provided to seek the dust into cyclone and bag filters, connected machineries are not provided and all the required bag filters are not provided.”
5. Before this inspection, Annexure-F was issued to the petitioner on 4-12-1985; the petitioner was prohibited from operating the Industry; hence this petition. The impugned order is purported to have been issued under Section 23 of the Act, which reads thus:
“23(l) Where in any air pollution control area the emission of any air pollutant into the atmosphere in excess of the standards laid down by the State Board occurs or is apprehended to occur due to accident or other unforeseen act or event, the person in charge of the premises from where such emission occurs or is apprehended to occur shall forthwith intimate the fact of such occurrence or the apprehension of such occurrence to the State Board and to such authorities or agencies as may be prescribed.
(2) On receipt of information with respect to the fact or the apprehension of any occurrence of the nature referred to in subsection (1), whether through intimation under that sub-section or otherwise, the, State Board and the authorities or agencies shall, as early as practicable, cause such remedial measures to be taken as are necessary to mitigate the emission of such air pollutants.
(3) Expenses, if any, incurred by the State Board, authority or agency with respect to the remedial measures referred to in subsection (2) together with interest (at such reasonable rate, as the State Govt. may, by order, fix) from the date when a demand for the expenses is made until it is paid, may be recovered by that Board, authority or agency from the person concerned, as arrears of land revenue, or of public demand.”
6. Sections 37 and 38, which are referred to in the show cause notice deal with the penalties and imposition of sentence on conviction. The contravention and violation, contemplated by these Sections, are failure to comply with conditions stipulated under sub-section (5) of Section 21 after obtaining consent; causing or discharging emission in e-cuss of the standard laid down by the State Board or any order or directions given by the State under the Act.
7. On behalf of the petitioner it was urged that:
(i) The action of the Board was illegal, as it had no power to prohibit the operation of the Factory;
(ii) The Board having not complied with Rule 19 had no authority to take any action; the contention was while the declaration u/s. 19 was published in Karnataka Gazette on 30th January 1984, there was no simultaneous publication of the notification in two local newspapers having wide circulation.
(iii) The, date under sub-section (2) of Section 21 has to be prescribed by rules and not by notification in the form of an executive order; Rules being silent regarding the period within which such application shall be made, as provided in clause (1) of Section 54(2) of the Act, there is no violation;
(iv) “Remedial Measures” contemplated by Section 23(2) does not include “Closing down” of the Factory.
(v) While the petitioner was willing to obtain ‘Consent’ the same was frustrated by the Board by sending erroneous Forms.”
7A. Mr. Rangaswamy, supporting the action of the Board, contended that the petitioner had an alternate remedy by appeal under Section 31 of the Act and therefore this petition is liable to be rejected. In the statement of objections, the non-obstinacy of consent has been very much highlighted and it is stressed in more places than one.
8. The point raised as preliminary objection is not stated in the statement of objections. While both the Advocates did not mention as to who is constituted as appellate authority, it appears to me that the order now challenged is not an order made by the Board under the Act. Annexure-F is sent by the Member-Secretary; it does not refer to any decision of the Board. The transactions of the Board are required to be conducted as per Rules 8 to 14. The Statement of Objections is silent regarding the proceedings of the Board. It neither refers to Minute Book nor to any resolution of the Board. Copy of Agenda is not furnished to find out whether this subject was included in it and was placed before the meeting of the Board. In fairness, if there had been such a resolution, the communication at Annexure-F, should have made a reference to that. Secondly, Annexure-F, requires the petitioner to close the industry, which, in my view, is not an order contemplated by Section 23. Neither in Form nor in spirit can it be construed as an order of the Board under the Act. Hence, I reject the preliminary objection.
9. The Act is designed to prevent control and abatement of air-pollution; the provisions relate to preservation of quality of 417 and control of pollution. Keeping in view these objects the Act has provided for measures, which are preventive in nature, in the cases of industries to be established; and in the case of industries already established, they are remedial. In the case of established industries, it insists on obtaining consent of, Board, making the industry amenable to the administrative control of the Board. Once a consent is given, the Board can issue orders, directions etc., which are to be complied with by the industry. Precisely for, this reason, the industry, which has given consent, is required to comply with certain conditions, enumerated in sub-section (5) of Section 21. Non-compliance of these conditions is made punishable under Section 37. The primary responsibility of controlling the Air-Pollution is on the Board. Subsection (2) of Section 23 (quoted above) casts a duty on the Board to cause such remedial measures as are necessary to mitigate the emission of air pollutants, and the expenses that are incurred can be recovered from the person concerned as arrears of land revenue.
10. Viewed in this background the direction to close, down the Factory, solely because it has not obtained consent of the, Board is clearly illegal. If the Board thinks that the petitioner has failed to comply with its order it may take action under Section 37, as proposed in the show cause notice; but that would not justify the passing of a prohibitory order which apart from causing loss to the owner has a serious consequence of paralyzing the industry affecting the livelihood of employed persons; the consequences may be more hazardous than the air pollution. Therefore the “remedial measures” contemplated must be understood as such measures which mitigate the emission of air pollutants. Therefore, the harsh step of prohibiting the working of the Factory is neither warranted nor has it the legal sanctity.
11. The above conclusion is sufficient to dispose of the petition; considering the high ideal for which the statute is enacted and the minute details which have been provided in the Act and rules to achieve that object, it becomes necessary to deal with the other contentions which mainly pertain to the procedural aspect.
Point No. 2. violation of Rule 19:
The criticism that there is no compliance with Rule 19 appears to be well founded. The said rule requires the declaration under Section 19 to be notified in the Gazette and at least in two local newspapers. This has to be done simultaneously or within a reasonable period. As pointed out by Supreme Court in Collector (D. M.) Allahabad v. Raja Ram, the notification, which is published in the Gazette must be followed by publication in the locality. The purpose being that the person concerned, who has to take some steps, must be made aware of his obligations. Thus examined the publication in “Kannada Prabha” on 25th June, 1984 and in “Deccan Herald” on 26th June 1984 i.e. six months after the publication in the Gazette can hardly be justify Further, what is published in these newspapers is not ‘the notification; but an information of having notified in the Gazette. However, petitioner has not pleaded nor has he demonstrated that it has caused prejudice to him; no purpose will be served by pursuing this aspect. For the conclusions, I reach, this is not material.
Point No. 3: Date of consent:
It is difficult to accept the contentions of the Counsel that that the date has to be prescribed by Rules. The Section requires that the application for consent must be in the prescribed form, within such period, which shall not be earlier than three months of the declaration. Declaration referred to therein is the declaration under Section 19. In the instant case the declaration is Gazetted on 30th January 1984 and notification fixing the date as 31st July 1984 is published on 6th March 1984. The date 31st July 1984 being beyond three months from the date of declaration, there is no violation. Though the date was fixed as 31-7-1984, the Board did not observe it rigidly and by Circular dated 11-1-1985 it invited applications. This liberal attitude was more in consonance with the object of the Act. Therefore the petitioner had to file his application and obtain the consent. In this regard, there seems to be some lapse on the part of the Board. On two occasions, the Board had sent forms, which did not pertain to Air Pollution. This lapse may be accidental, but that does not preclude the petitioner from securing the correct form and apply for consent.
12. At the end, it was pointed out that in spite of prohibitory orders, petitioner was working the industry in the nights; this is denied by petitioner. I express no opinion on this aspect. It is for the Authorities to take appropriate steps in that regard. The Assistant Executive Engineer (Mr. T. H. Nanjappa) appears to have inspected the industry on 18-1-1986; he has made certain recommendations, and has opined that the petitioner should take prior clearance from the Board for installation of any machinery and Air Pollution Control Equipment to avoid future problems.
13. In this view of the matter and for the foregoing reasons, I make the following order:
(i) Writ petition is allowed; Prohibitory order Annexure-F is quashed.
(ii) Petitioner is directed to file the application for consent in the prescribed form, with requisite fees and other requirements on or before 20th of August, 1986. On such filing, he will be entitled to operate the industry until consent applied for is specifically refused. Till the date of filing, he will maintain status quo.
(iii) The Board, if it does not refuse consent on relevant and justifiable grounds, shall take appropriate steps to give clearance and proper guidelines to the petitioner, as recommended by Mr. T. H. Nanjappa, Asst. Executive Engineer.
(iv) No costs.
14. Petition allowed.