ORDER J.N. Sarma, J.

1. 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 & Environment Depart ment. 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 Guwahatl 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 An-nexure-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 process. This is Annexure-4 to the writ application. On 3-2-94 the Respondent No. 3 by letter asked the petitioner to comply with the provision of the Act of 1981 within 10-2-94. The petitioner by letter dated 9-2-94 requested for supply of application form and enclosed a pay order for Rs. 100/-. This is Annexure-5A to the writ application. That is quoted below :

" Date : 9-2-94 To, The Member Secretary, Pollution Control Board, Assam.

Sub:--Air Pollution.

Ref:-- i) Our letter No. Nil dt. 22-12-93.

 ii) "" "          dt.12-1-94.  
 

 Dear Sir,   
 

Weacknowledge with thanks the receipt of your letter No. WB/T-117/93-94/10, dated 8-2-94 on the above subject. In this connection we would like to inform you that father Late S. C. Das established this Industry way back in forties when no Pollution Control Act was in operation in the country.

After the demise of our father we are managing the industry for last few decades and till we received your letter in December 1993, nobody questioned about the possibility of our pollution that may be created by our Industry. Vide our industry, where to manufacture the laundry soap, the raw material is just boiled in the pans and cooled down to make soap.

Under the circumstances we would like to request you to kindly Issue us the necessary application forms to enable us to obtain required consent. No objection from your esteemed institution.

We are enclosing herewith a pay order for Rs. 100/- (Rupees one hundred only) vide no. 884935, dated 9-2-94 for application fees.

Thanking you.

Yours faithfully, for Jadav Soap Works."

Before supplying the application form for consent, the Respondents No. 3 and 4 issued letter dated 16-2-94 to close the petitioners industry. That is Annexure-6 to the writ application. Application form was supplied on 17-2-94, but notice under Section 31A was issued to close the unit by letter dated 16-2-94 without giving any opportunity to apply for consent. Hence, this writ application.

3. An affidavit-in-opposition as well as an additional affidavit-in-opposition have been filed on behalf of the Respondents No. 3, 4 and 5 and affidavit-in-reply has also been filed on behalf of the petitioner. I have heard Mr. B. R. Dey, learned Advocate for the petitioners, Mr. P. G. Baruah, learned Advocate for the Respondent No. 6 and Mr. A.H. Saikia, learned Advocate for the Respondents No. 3, 4 and 5 and the Central Govt. standing counsel for the Union of India, Respondent No. 1 and the learned Govt. Advocate, Assam lor the Respondent No. 2 State of Assam.

4. Mr. Dey, learned Advocate for the petitioners makes the following submissions :

1) no opportunity was given to obtain the consent and as such Annexure-6 is liable to be quashed on that ground alone, ii) that there is no finding regarding pollution. He also makes the submission that on 29-11-94, the Government of India, Ministry of Industry Small Industries Service Institute, Bamunimaidan, Guwahati-21 wrote the following letter:

"No.E19(1)/90/5234 Dated the 29-11-94p2 To, The Member Secretary, Pollution Control Board, Assam.

Sub:-- Issue of consent from Pollution Control Board, SSI Units.

Dear Sir, I am inviting a reference to the letter No. 6 (15)/93-SSI Board & Policy dated 26-9-94 from the office of the DC(SSl), New Delhi and subsequently letter from M/S Jadav Soap Works, Kedar Road, Guwahati vide his letter No. JSO/F/SSI/530/94 dated 21-11-94 on the subject cited above.

It has been observed from his letter that he established his factory a couple of decades ago and is running till date with a minimum block (sic) capital i.e. curing Karahi, other utensils and open furnaces.

In this connection the undersigned has referred the minutes of the meeting held on 7th June, 1993 by the small scale industries minister's conference page-2 paras 2-3.

The Central Govt, has directed the Central Pollution Control Board to exempt small Industries from obtaining consent under Air and water pollution central laws except for 17 highly and critically polluting sectors. In the light of above you are kindly requested to look into the matter in a sympathetic manner.

Thanking you.

Yours faithfully, Sd/-

R. D. Bosnian Asstt. Director, L/F for Director."

 2000 Gau./4     III G-28  
 

 It is submitted that that aspect of the matter was also not taken into consideration by the Board.  
 

 5.    Section 31A of the Act of 1981 is
quoted below :  

"31-A, Power to give directions.-- Notwithstanding anything contained in any other law, but subject to the provisions of this Act and to any directions that the Central Government may give in this behalf a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer of authority and such person, officer of authority shall be bound to comply with such directions."

Section 31A as quoted above will show that this is subject to the provisions of this Act and that power can be exercised only after complying with the earlier provision. Chapter III provides for power and functions of the Board. Section 17 provides for functions of State Boards. Chapter IV provides for prevention and Control of Air Pollution. Section 22 provides for persons carrying on industry, etc. shall not allow emission of air pollutions in excess of the standards laid down by State Board. Nothing has been shown in this case what is the standard laid down by the State Board. Section 24 provides for power of entry and inspection. Section 25 provides for power to obtain information. Section 26 provides for power to take samples of air emission and procedure to be followed in connection therewith Section 27 provides for reports of the result of analysis on samples taken under Section 26. Section 31 provides for appeal. Section 31A does not give a blanket power to pass any and/or every order as it may like to do. It is the subject to the provision of the Act. But in this particular case as will be seen from Annexure-6 the authority arrived at the following findings :

1) that the industry was emitting high black smokes which have been creating hazards to the inhabitants of the locality.

ii) that the black smokes are being emitted without taking any preventive step to control at source creating hazard in that area.

No record was produced before me to show how the Board arrived at this finding before issuing Annexure-6. The whole action of the authority appears to be arbitrary and highhanded exercise of power.

6. Accordingly, this writ application is allowed. Annexures-1, 5 and 6 shall stand quashed. But it is made clear that even now the Board may take appropriate action by following the due process of law. The Board also may give a consent to the petitioners by taking into the account the letter written by the Govt. of India which has been quoted above. I leave the parties to bear their own costs.