TMI Blog2003 (3) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclare 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 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 Gazett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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:- 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, 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulations 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, publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, 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 know ..... X X X X Extracts X X X X X X X X Extracts X X X X
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