HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Chief Justice's Court                                                                               AFR
 

 
Case :- MISC. BENCH No. - 3990 of 2000
 

 
Petitioner :- Brijesh Kumar Singh
 

 
Respondent :- State Of U.P. Through Its Chief Secretary Civil Secretariat

Counsel for Petitioner :- B.K. Singh, Shiv Ji Shukla Counsel for Respondent :- C.S.C., Kamlesh Singh, S.C.Shukla Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice Hon'ble Shri Narayan Shukla, J A circular was issued by the Chief Secretary to the State Government on 26 October 1998. The circular was issued to all the Principal Secretaries or, as the case may be, Secretaries in the various departments in the State Government, Heads of Department, Divisional Commissioners and Collectors. The circular states that with a view to encourage industrial development in the State, it has become necessary to protect industrial units from unnecessary interventions by administrative officials. Accordingly, a decision was communicated to the effect that before an industrial unit is subjected to inspection by the Regional Officer of the Pollution Control Board (to whom the circular was also addressed), permission would have to be taken at the district level from the Collector and at the divisional level from the Divisional Commissioner. This direction is sought to be challenged on the ground that it imposes an unlawful restraint on the exercise of powers which are conferred upon the State Pollution Control Board1 under the enabling legislation. Under Section 23 of the Water (Prevention and Control of Pollution) Act, 19742, the State Board has been vested with the power of entry and inspection for the performance of its functions and for determining, inter alia, as to whether the provisions of the Act, the rules or of any authorisation is being complied with. A similar power is conferred upon the State Board by Section 24 of the Air (Prevention and Control of Pollution) Act, 19813. For convenience of reference, we extract herein below the provisions of Section 23 (1) of the Act of 1974:

"23. Power of entry and inspection. -

(1) Subject to the provisions of this section, any person empowered by a State Board in this behalf shall have a right at any time to enter, with such assistance as he considers necessary, any place -

(a) for the purpose of performing any of the functions of the Board entrusted to him;

(b) for the purpose of determining whether and if so in what manner, any such functions are to be performed or whether any provisions of this Act or the rules made thereunder or any notice, order, direction or authorisation served, made, given, or granted under this Act is being or has been complied with;

(c) for the purpose of examining any plant, record, register, document or any other material object or for conducting a search of any place in which he has reason to believe that an offence under this Act or the rules made thereunder has been or is being or is about to be committed and for seizing any such plant, record, register, document or other material object, if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder:

Provided that the right to enter under this sub-section for the inspection of a well shall be exercised only at reasonable hours in a case where such well is situated in any premises used for residential purposes and the water thereof is used exclusively for domestic purposes."

The provisions of Section 24 of the Act of 1981 are pari materia. Similarly, Section 10 of the Environment (Protection) Act, 19864 confers a power of entry and inspection upon any person empowered by the Central Government for the performance of any of the functions entrusted and for determining whether the provisions of the Act or the rules or of any authorisation or direction has been complied with. Section 10 (1) of the Environment Act is in the following terms:

"10. Powers of entry and inspection. - (1) Subject to the provisions of this section, any person empowered by the Central Government in this behalf shall have a right to enter, at all reasonable times with such assistance as he considers necessary, any place -

(a) for the purpose of performing any of the functions of the Central Government entrusted to him;

(b) for the purpose of determining whether and if so in what manner, any such functions are to be performed or whether any provisions of this Act or the rules made thereunder or any notice, order, direction or authorisation served, made, given or granted under this Act is being or has been complied with;

(c) for the purpose of examining and testing any equipment, industrial plant, record, register, document or any other material object or for conducting a search of any building in which he has reason to believe that an offence under this Act or the rules made thereunder has been or is being or is about to be committed and for seizing any such equipment, industrial plant, record, register, document or other material object if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder or that such seizure is necessary to prevent or mitigate environmental pollution. "

The Chief Secretary by issuing a circular dated 26 October 1998 attempted to infringe the statutory duties and functions which are cast upon statutory authorities constituted under the Environment Act, the Act of 1981 and the Act of 1974. The State Board is a statutory authority which is vested with powers, duties and functions under the enabling legislation. The exercise of statutory powers cannot be subjected to the grant of administrative permission unless the statutory provision itself conditions the exercise of power subject to the grant of permission. Otherwise, the imposition of any such condition will become unlawful and would be ultra vires the statutory provisions. In the absence of any such restraint or pre-condition in the enabling legislation, the Chief Secretary could not have conditioned the exercise of power to carry out an inspection only upon the permission of the Collector or, as the case may be, the Divisional Commissioner. The statutory authority or the person empowered, is conferred with the right to enter at all reasonable times and with such assistance which it considers necessary, any place for the performance of its statutory duties or functions.

Under Section 23 (2) of the Act of 1974 and the corresponding provisions of Section 24 (4) of the Act of 1981, the provisions of the Code of Criminal Procedure, 1973 shall, so far as may be, apply to any search or seizure under the Section. The circular which has been issued by the Chief Secretary was not pertaining to the requirements of Section 23 (2) or Section 24 (4) but was a general administrative direction for seeking permission of the Collector or, as the case may be, the Divisional Commissioner which was without the authority of law.

For these reasons, we hold that the circular dated 26 October 1998 was without the authority of law and was in conflict with the statutory powers and duties which are conferred upon the State Board under the Act of 1974 and the Act of 1981 respectively, and contrary to the provisions of Section 10 of the Environment Act. Hence, we allow the writ petition and quash and set aside the circular dated 26 October 1998 issued by the Chief Secretary, to that extent.

Prayer clauses (ii) and (iii) of the writ petition related to the shifting of all hazardous and noxious industries from Lucknow city and for reconsidering the list of non-polluting industries.

At the hearing of the writ petition, the petitioner has fairly stated that since the petition was filed in 2000 and there would have been significant developments in the meantime, liberty may be granted to the petitioner to not press the writ petition in respect of prayer clauses (ii) and (iii) with liberty reserved to initiate appropriate proceedings in accordance with law.

We consider the request to be eminently fair and proper and hence grant liberty, as prayed for.

The petition is accordingly disposed of in the aforesaid terms. There shall be no order as to costs.

Order Date :- 18.8.2015 AHA (Dr D Y Chandrachud, CJ) (S N Shukla, J) Hon'ble Dr D Y Chandrachud, CJ Hon'ble S N Shukla, J Disposed of.

For orders, see order of date passed on separate sheets.

Order Date :- 18.8.2015 AHA (Dr D Y Chandrachud, CJ) (S N Shukla, J)