JUDGMENT M.M. Kumar, J.

1. By this common judgment both the revision petitions, namely Civil Revision Nos.459 and 458 of 2000 can conveniently be disposed of together since common questions of law and facts are involved. The facts taken are from Civil Revision No. 459 of 2000.

2. This revision petition is directed against the order dated 2.11.1999 passed by Additional District Judge, Gurgaon rejecting the appeal of the defendant-petitioner-Haryana State Pollution Control Board and another, in which the order dated 21.9.1999 passed by the Civil Judge (Senior Division), Gurgaon was challenged. The Civil Judge vide his order dated 21.9.1999 has directed the defendant-petitioner to remove the seal from the site of the unit belonging to the plaintiff-respondent No. 1 and restore the same to the position as it was on 18.8.1999. The right of the defendant-petitioner to examine the application of the plaintiff-respondent No. 1 afresh by giving sufficient time to comply with the directions recorded in the show cause notice dated 12.8.1999 has been kept intact by the order of the Civil Judge.

3. The facts of the case as revealed from the record briefly are that the plaintiff-respondent No. 1 has been running a stone crushing unit in Naurangpur crushing Zone - an approved crushing Zone by the State of Haryana. A provisional no objection certificate was issued to the plaintiff-respondent No. 1 vide which the consent was granted for running the crusher for the year 1998-99. The plaintiff-respondent No. 1 applied for grant of consent for the year 1999-2000 under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (for brevity, the Act) alongwith consent fee of Rs. 7,500/- and completed all other requirements. According to Sub-clause (4) of Section 21 of the Act, the application for consent is required to be decided by the defendant-petitioner within 4 months of its receipt and if the period of 4 months expires, the consent is deemed to have granted which is the case set up before both the Courts below. It was further alleged that on 15.9.1998 and 12.5.1999, the sample of their trade effluent was taken by the Scientist of the defendant-petitioner and it was found that the sample was within the prescribed norms. However, on 12.8.1999 a letter was issued wherein the plaintiff-respondent No. 1 was directed to plant more trees on the available land and provide interlinking system. It was further directed that more sprinklers be installed on the periphery wall on or before 21.8.1999. There was no allegation in this communication that the unit of the plaintiff-respondent did not conform to the norms prescribed by the Act or the Rules or that the consent for the year 1999-2000 has been rejected. The defendant-petitioner six days thereafter, passed an order on 18.8.1999 directing the closure of the unit belonging to plaintiff-respondent No. 1. On 19.8.1999, the unit was sealed and the production came to stand still in which the plaintiff-respondent No. 1 had invested more than Rs. 21 lacs. It was asserted that the order passed by the defendant-petitioner under Section 31-A of the Act is absolutely illegal, arbitrary, without jurisdiction, against the principles of natural justice and many other grounds.

4. The case of the defendant-petitioner set up before the Courts below is that the application for grant of consent commencing from 1.3.1999 tacked material particulars and it cannot be deemed to be proper application. The sample report was submitted on 14.5.1999, which should be the date when the application for grant of consent has been received and the period of 4 months was yet to expire. The institution of the suit itself is misconceived. It was also contested that Sub-section (4) of Section 21 of the Act provides for deeming consent. It has further been asserted that the unit has been sealed in accordance with law and no illegality has been committed as the plaintiff-respondent No. 1 has failed to install sprinklers or plant trees which were essential pre-requisite conditions for minimising the pollution. Therefore, the order passed on 18.8.1999 directing the closure of the unit under Section 31-A of the Act was fully justified.

5. After hearing respective arguments of the parties, the Civil Judge reached the following conclusion:-

"In the present case the order of the closure of unit of the plaintiff has been illegally passed even without waiting for the expiry of time given to the plaintiff to fulfil the requirements or conditions by the defendants vide their show cause notice dated 12.8.99. Apparently the act of the defendants seems to be against the principles of natural justice. In violation of the principles of natural justice, the plaintiff has a very strong case in his favour as he has also spent Rs. 22 lacs for running his business. In view of the above circumstances and facts application of the plaintiff is allowed and I direct the defendants to remove the seal on the site of the unit of the plaintiff and restore to the same position as was on 18.8.99.

However, the defendants have right to examine the application of the plaintiff afresh by giving sufficient time to the plaintiff to comply with the directions mentioned in show cause notice dated 12.8.1999."

6. The Additional District Judge also reached the conclusion that the facts on record reveal that the stone crusher of plaintiff-respondent No. 1 did not emit any pollution which was beyond the norms fixed by the Act or the Rules. The letter dated 12.8.1999 also failed to allege any violation which had directed the plaintiff-respondent No. 1 to provide additional devices to stop pollution upto 31.8.1999. The requirement was to provide more sprinklers and plant more trees. However, on 18.8.1999 itself orders were passed directing the closure of the unit under Section 31-A of the Act which was totally arbitrary and against the principles of natural justice. Therefore, the learned Additional District Judge dismissed the appeal of the defendant-petitioner.

7. Shri Sanjeev Sharma, learned counsel for the defendant-petitioner has argued that the lower appellate Court has referred to non existent Rule 20-A while recording the arguments of the defendant-petitioner. In any case both the Courts below have proceeded on wrong premises that under Sub-sections (2) and (4) of Section 21 of the Act, there is a deemed consent if the Board has failed to decide the application of the industry within a period of four months. He has further argued that under Section 21-A of the Act, absolute power has been given to the defendant-petitioner to order closure of any unit which is violative of the norms.

8. On the other hand, Shri H.S. Hooda, Learned Counsel for plaintiff-respondent No. 1 has submitted that both the Courts below have taken a particular view and in the revisional jurisdiction this Court should not interfere unless there is complete failure of justice or there is any material irregularity. In so far as reference to Rule 20-A in paragraph 9 of the judgment of the appellate Court is concerned, Shri Hooda submitted that it appears to be a clerical mistake, whereas reference appears to be Section 21(2) or 21(4) of the Act.

9. I have thoughtfully considered the rival contentions raised by learned counsels for the parties. An analysis of Section 21 of the Act providing for obtaining of consent shows that a period of four months has been prescribed for taking decision on the application and proviso to Sub-section (2) of Section 21 of the Act also provides that an applicant is deemed to be operating an industrial unit with the consent of the Board until the consent has been refused. Under Section 31-A of the Act, power has been given to the defendant-petitioner to issue any direction in writing to any person, officer or authority who is bound to comply with such directions. The object of Section 31-A of the Act appears to be that the officers who are associated with the supply of electricity, water or any other service to the industry could be asked to discontinue their service to the industrial unit and also to close the operation of the unit. Sections 21 and 31-A of the Act are reproduced below for facility of reference:-

"21. Restrictions on use of certain industrial plants.- [(1) subject to the provisions of this section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area:

Provided that a person operating any industrial plant in any air pollution control area immediately before the commencement of Section 9 of the Air (Prevention and Control of Pollution) Amendment Act, 1987, for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent within the said period of three months, till the disposal of such application.

2. An application for consent of the State Board under Sub-section (1) shall be accompanied by such fees as may be prescribed and shall be made in the prescribed form and shall contain the particulars of the industrial plant and such other particulars as may be prescribed;

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 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.

3. The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in Sub-section (1) and in making any such inquiry, shall follow such procedure as may be prescribed.

4. Within a period of four months after the receipt of the application for consent referred to in Sub-section (1), the State Board shall, by order in writing, [and for reasons to be recorded in the order, grant the consent applied for subject to such conditions and for such period as may be specified in the order, or refuse such consent:] [Provided that it shall be open to the State Board to cancel such consent before the expiry of the period for which it is granted or refuse further consent after such expiry if the conditions subject to which such consent has been granted are not fulfilled.

Provided further that before cancelling a consent or refusing a further consent under the first proviso, a reasonable opportunity of being heard shall be given to the person concerned.]

5. Every person to whom consent has been granted by the State Board under Sub-section (4) shall comply with the following conditions, namely:-

i) the control equipment of such specifications as the State Board may approve in this behalf shall be installed and operated in the premises where the industry is carried on or proposed to be carried on:

ii) the existing control equipment, if any, shall be altered or replaced in accordance with the directions of the State Board.

iii) the control equipment referred to in Clause (i) or Clause (ii) shall be kept at all times in good running condition:

iv) Chimney, wherever necessary, of such specifications as the State Board may approve in this behalf shall be erected or re-erected in such premises.

v) such other conditions as the State Board may specify in this behalf; and

vi) the conditions referred to in Clauses (i), (ii) and (iv) shall be complied with within such period as the State Board may specify in this behalf.

Provide that in the case of a person operating any industrial plant [* * * ] in an ail pollution control area immediately before the date of declaration of such area as an air pollution control area, the period so specified shall not be less than six months:-

Provided further that -

a) after the installation of any control equipment in accordance with the specifications under Clause (i), or

b) after the alteration or replacement of any control equipment in accordance with the directions of the State Board under Clause (ii), or

c) after the erection or re-erection of any chimney under Clause (iv), no control equipment or chimney shall be altered or replaced or, as the case me be, erected or, erected or re-erected except with the previous approval of the State Board.

6. If due to any technological improvement or otherwise the State Board is of opinion that all or any of the conditions referred to in Sub-section (5) require or requires variation (including the change of any control equipment, either in whole or in part), the State Board shall, after giving the person to whom consent has been granted an opportunity of being heard, vary all or any of such conditions and thereupon such person shall be bound to comply with the conditions as so varied.

7. Where a person to whom consent has been granted by the State Board under Sub-section (4) transfers his interest in the industry to any other person, such consent shall be deemed to have been granted to such other person and he shall be bound to comply with all the conditions subject to which it was granted as if the consent was granted to him originally.

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 or authority, and such person officer or authority shall be bound to comply with such directions.

Explanation:- For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct:-

a) the closure, prohibition or regulation of any industry, operation or process: or

b) the stoppage or regulation of supply of electricity, water or any other service."

10. In the present case the interpretation of above quoted provisions is not necessary to determine the issues involved because it has come on record that a notice was issued on 12.8.1999 and time given was upto 31.8.1999. However, the order directing the closure of the unit was passed under Section 31-A of the Act on 18.8.1999 itself. The argument of Shri Sharma that the unit kept on operating till 21.9.1999 when the order of injunction was passed is not acceptable because the suit itself was filed on 25.8,1999 and the findings of the Courts below show that the unit was sealed. Therefore, there is no room to doubt that the defendant-petitioner acted in a hot haste even without giving the plaintiff-respondent No. 1 time which was prescribed in the notice issued on 12.8.1999. Once the defendant-petitioner itself has given time upto 31.8.1999, it is not fair and just to pass an order on 18.8.1999 directing the closure of the suit. The action is totally arbitrary and the orders passed by both the Courts below do not suffer from any legal infirmity or illegality. Moreover, the right of defendant-petitioner to issue fresh orders and to proceed in accordance with law has been kept intact.

11. For the reasons stated above, the revision petitions are dismissed. Nothing said herein should be taken as an expression of opinion on merits of the civil suits.