JUDGMENT D.P. Mohapatra, J.

1. These two cases involve common question of facts and law; the disputes raised in both the cases is similar and the parties are also the same. Therefore with the consent of learned counsel for the parties the cases were heard together and they are being disposed of by a common judgment.

2. The case involves interpretation and interplay of the relevant provisions of the Environment (Protection) Act, 1986 (Act No. 29 of 1986) and the rules framed under it and the Water (Prevention and Control of Pollution) Act, 1974 (Act No. 6 of 1974) and the rules framed thereunder. Both the writ petitions have been filed by M/s. Mahabir Soap and Gudakhu Factory represented by its Managing Partner, Sri Govindram Agar-walla against the Union of India represented by its Secretary in the Ministry of Environment and Forest, Member-Secretary, Orissa State Prevention and Control of Pollution Board and the Collector and District Magistrate, Balangir.

In O.J.C. No. 4388 of 1990, the petitioner has prayed for quashing the direction issued by the Government of India under Section 5 of the Environment (Protection) Act, 1956 to close down the petitioner's suit forthwith with the further direction that the concerned authorities shall disconnect water supply, supply of electricity and other facilities provided to the unit with immediate effect and that the petitioner shall not restart its unit unless it takes all the pollution control measures to ensure that the effluent discharged from its unit meets the prescribed standards and after obtaining the prior approval of the Central Government, which was communicated to petitioner in the letter dated 22nd October, 1990 of the Under Secretary to the Government of India, Ministry of Environment and Forests, vide Annexure-6.

In O.J.C. No. 5606 of 1991, the petitioner has asailed the decision of the Orissa State Prevention and Control of Pollution Board refusing to grant consent under Sections 25 and 26 of Water (Prevention and Control of Pollution) Act, 1974 to continue its unit at the site, which was communicated to petitioner in the letter dated 3-1-91 vide Annexure-7.

3. The relevant facts necessary for proper appreciation of the dispute may be stated thus:

The petitioner is operating a factory for manufacturing tobacco tooth paste commonly referred to as 'Gudakhu' since 1957. The factory is located in a thickly populated area of Kantabanji town. The petitioner has not obtained any consent as required under Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974.

On 12-9-90, a show-cause notice was issued to the petitioner by the Under Secretary to Government of India (Annexure-1 in O.J.C. No. 4388 of 1990) stating, inter alia, that the petitioner was carrying on tobacco processing operations in its unit, which is generating highly polluted effluents; that the unit was being operated without the consent of the State Pollution Control Board in violation of the Water (Prevention and Control of Pollution) Act; that the petitioner was discharging the effluents from its unit without any treatment resulting in pollution of the water reservator which was used for human consumption and, therefore, the Central Government, in exercise of the powers conferred upon it under Section 5 of the Environment (Protection) Act, proposed to issue the directions stated in the notice to the petitioner. In the said notice fifteen days) time was granted to the petitioner to file objection, if any, and it was made clear that in case no reply was received within the stipulated period, the directions will be confirmed without any further reference to it. In the reply to the said notice, the Managing partner of the firm submitted his reply to the show cause notice on 26-9-90 (Annexure-4) in which he denied the allegations made in the notice. He also denied that there was generation of any effluent in the process and as such the question of discharge of any harmful effluents did not arise. The materials on record show that in respect of the petitioner's factory enquiry was conducted under Sections 21, 25 and 26 of the Act by the officials of the State Pollution Control Board vide intimations of the Member-Secretary dated 20-9-90 (An-nexure-2) and.dated 22-10-90 (Annexure-5). In the meantime the order dated 22-10-90 (Annexure-6) was passed by the Government of India directing closure of the unit and restraining the petitioner from restarting it till adequate pollution control measures were taken to ensure that no effluents were discharged from its unit. Thereafter, an application was submitted by the Managing Partner on 13-11-90 (Annexure-8) to the Member-Secretary of the Board seeking consent under Sections 25 and 26 of the Act. The Managing Partner also submitted an application to the Collector, Balangir on 12-11-90 (Annexure-10) to allot a suitable plot at Kantabanji for locating the factory. The request for consent was turned down by the Board on the ground that the factory was located in a thickly populated area and there was public complaint against it vide the communication dated 30-4-91.

4. From the averments in the writ petition it appears that the order as per Annexure-6 is assailed mainly on the grounds that it was passed without giving reasonable opportunity for personal hearing and without giving any specific time to comply with the directions under Section 5 of the Environment (Protection) Act, 1986; that the direction for closure of the unit was made without giving any specific time to comply with the direction issued under Section 5 of the Act. It is contended that in the circumstances the principle of natural justice had not been followed while passing the order. The order of the Board declining to accord consent for continuing the unit is assailed mainly on the ground that the Member-Secretary of the Board had not applied his mind while passing the order of refusal; that there was no material in support of the allegations against the petitioner except the letter of Shri Bal Gopal Misra, Ex. M.L.A., which was motivated and actuated by political rivalry and that the procedure for taking sample under Rule 6 of the Environment (Protection) Rules, 1986 was not adopted in the case of petitioner and, further that the grounds stated for refusal of consent are unsustainable. The further case of the petitioner is that the unit had been established after obtaining 'No objection certificate' and licence from the State Government and the Central Government and Notified Area Council, Kantabanji. According to the petitioner on getting the notice issued under Section 5 of the Environment (Protection) Act, 1986, certain addition and alteration for treatment of the effluent and to control water pollution had been made which were not considered by the authorities while passing the impugned orders.

5. The case of the opposite parties on the other hand is that the consent of any authority, State or local body, under any other law cannot afford any protection to the petitioner against the action under the statutes in question. According to the opposite parties, the principle of natural justice was complied before the orders under challenge were passed. It is their contention that opportunity of personal hearing is neither a requirement under the statute nor a necessary concomitant of the principle of natural justice.

6. At the outset some relevant statutory provisions may be noted :

Section 3(1) of the Environment (Protection) Act, 1986 lays down that subject to the provisions of the Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and improving the quality of the environment and preventing, controlling and abating environmental pollution. Sub-section (2) of the said section enumerates certain matters relating to which measures may be taken by the Central Government. Clause (v) of Sub-section (2) of the said section provides restriction of areas in which any industries, operations, or processes, or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards.

Section 5 of the Act under which the impugned order has been passed reads :

"Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and 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) stoppage or regulation of the supply of electricity or water or any other service."

Chapter III of the Act contains provisions relating to prevention, control and abatement of environment pollution.

Section 7 in the said Chapter lays down that no person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or omitted any environmental pollutant in excess of such standards as may be prescribed.

Section 23 empowers the Central Government to delegate all or any of its powers under the legislation to any officer, State Government or authority-

Under Section 24 of the Act, it is provided that the provisions of the Act and the rules or orders made therein shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act and where any act or omission constitutes an offence punishable under the Act and also under any other Act then the offender found guilty of such offence shall be liable to be punished under the other Act and not under this Act.

Rule 4 of the Environment (Protection) Rules, 1986 lays down the procedure and the manner of issuing any direction under Section 5 of the Act. Sub-rule (3-a) of Rule 4 provides that the person, officer or authority to whom any direction is sought to be issued shall be served with a copy of the proposed direction and shall be given an opportunity of not less than fifteen days from the date of service of a notice to file with an officer designated in this behalf the objections, if any, to the issue of the proposed direction.

Sub-rule (3-b) provides that where the proposed direction is for the stoppage or regulation of electricity or water or any other service affecting the carrying on any industry, operation or process and is sought to be issued to an officer or an authority, a copy of the proposed direction shall also be endorsed to the occupier of the industry, operation or process, as the case may be, and objections, if any, filed by the occupier with an officer designated in this behalf shall be dealt with in accordance with the procedures under Sub-rule (3-a) and (4) of this rule:

Proviso to the said sub-rule lays down that no opportunity of being heard shall be given to the occupier if he had already been heard earlier and the proposed direction referred to in Sub-rule (3-a) above for the stoppage or regulation of electricity or water or any other service was the resultant decision of the Central Government after such earlier hearing.

Sub-rule (4) of the Rule 4 reads:

"The Central Government shall within a period of 45 days from the date of receipt of the objections, if any, or from the date up to which an opportunity is given to the person, officer or authority to file objections whichever is earlier, after considering the objections, if any, received from the person, officer or authority sought to be directed and for reasons to be recorded in writing, confirm, modify, or decide not to issue the proposed direction."

7. Section 24(1)(a) of the Water (Prevention and Control of Pollution) Act, 1974 provides, inter alia, that no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter whether directly or indirectly into any stream or well or sewer or on land.

Sub-section (3) of the said Section empowers the State Government, after consultation with or on the recommendation of the State Board, to exempt, by notification in the Official Gazette, any person from the operation of Sub-section (1) subject to such conditions, if any, as may be specified in the notification and any condition so specified may by a like notification be altered, varied or amended.

Section 25(1) provides that subject to the provisions of this section, no person shall, without the previous consent of the State Board-

(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well sewer or on land such discharge being hereafter in this section referred to as discharge of sewage.

In the proviso to said sub-section it is laid down that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water and Prevention and Control of Pollution) Amendment Act, 1988, 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.

In Sub-section (2) of Section 25 of the Act it is provided that an application for consent of the State Board under Sub-section (1) shall be made in such form, contain such particulars and shall be accompanied by such fees as may be prescribed.

Sub-section (3) thereof empowers the State Board to 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.

It is provided in Sub-section (4) of Section 25 that the State Board may grant its consent referred to in Sub-section (1) subject to such conditions as it may impose, or refuse such consent for reasons to be recorded in writing.

Section 28(1) provides for appeals -- by any person aggrieved by an order made by the State Board under Sections 25, 26 and 27 of the Act.

8. From the provisions in the statutes and the rules noted above, there is little scope for doubt that it was within the power and competence of the Central Government to issue the direction to close the petitioner's industrial unit forthwith and to disconnect supply of electricity or water and to restrain the petitioner for restarting the unit till all the pollution control measures are taken to ensure that the effluent discharged from the unit meets the prescribed standards and after obtaining the prior approval of the Central Government. It is also within the power of the State Board to reject the petitioner's application for consent under Section 25 of the Water (Prevention and Control of Pollution) Act. The questions for consideration is whether the authorities have violated the procedure prescribed or the principle of natural justice while exercising the statutory powers. As noted earlier, the notice to show cause was issued to the petitioner by the Central Government before issuing direction under Section 5 of the Environment (Protection) Act, 1986. The grievance of the petitioner is that opportunity of personal hearing was not afforded to him. In support of the contention, reliance is placed on the proviso to Sub-rule (3-b) of Rule 4 of the Environment (Protection) Rules. No doubt, the proviso provides for an opportunity of hearing to be occupier, but it has to be read along with sub-rule (3b) of which it is a part. The said sub-rule provides that when the proposed direction is for the stoppage or regulation of electricity or water or any other service affecting the carrying on of any industry, operation of process and is sought to be issued to an officer or an authority, a copy of the proposed direction shall also be endorsed to the occupier of the industry, operation or process, as the case may be, and objection, if any, filed by the occupier with an officer designated in this behalf shall be dealt with in accordance with the procedure under sub-rules (3-a) and (4) of this rule. Under the proviso to Sub-rule (3-b) it is laid down that no opportunity of hearing shall be given to the occupier, if he had already been heard and the proposed direction referred to in Sub-rule (3-a) above for the stoppage or regulation of electricity or water or any other service was the resultant decision of the Central Government after such earlier hearing. The term 'occupier' as defined in Section 2(f) of the Act is in relation to any factory or premises and means a person who has control over the affairs of the factory or the premises and includes, in relation to any substance, the person in possession of the substance.

9. On a reading of Sub-rule (3-b) of Rule 4, it is clear to us that the provision is applicable in a case where the notice is issued to an officer or an authority other than an occupier of the industry, operation or process and in such a case the provision requires that a copy of the proposed direction shall also be endorsed to the occupier and the proviso contemplates that no opportunity of being heard shall be given to the occupier if he had already been heard earlier or the stoppage of electricity or water or any other service was the resultant decision of the Central Government after such earlier hearing. Sub-rule (3-b) provides that the objection, if any, filed by the occupier with an officer designated in this behalf shall be dealt with in accordance with the procedure under Sub-rules (3-a) and (4) of this rule. Neither Sub-rule (3-a) nor Sub-rule (4) provides for opportunity of hearing. All that is provided in these sub-rules is for giving an opportunity for filing objection and for consideration of such objection while passing order/direction.

In the case at hand, the notice was issued to the managing partner of the firm which the industrial unit is in question. Hence, there was no necessity to send a copy of the proposed direction to the occupier. Therefore, Sub-rule (3-b) of Rule 4 was not attracted in the case. The procedures prescribed under Rule 4 have been duly followed in the case. In the circumstances, we are not persuaded to accept the contention of the petitioner that the direction issued by the Central Government under Section 5 of the Environment (Protection) Act was vitiated on the ground noted earlier.

10. Coming to the order of the State Board refusing to grant consent, as noted earlier, it was within the power and competence of the Board to refuse consent. The only statutory requirement was to state the reason in the order. It is stated in the order dated 30-4-91 (Annexure-7) that the site is located in a thickly populated area and there is public complaint against the factory. Both the reasons are factual in nature. From the averments in the writ application, it appears that the petitioner has not challenged the basis of these reasons except stating that the public complaint was only from Sri Bal Gopal Misra, Ex-M.L.A. of Kantabanji, whose protest was motivated. The reason stated cannot be said to be unreasonable or extraneous or not germane to the purpose of the statute which is to prevent and to control water pollution and to maintain wholesomeness of water. Grant or refusal of consent in the very nature of thing is at the discretion of the State Board. It is not for the Court to go into the propriety of the reason and substitute its opinion in place of the decision of the State Board, We, therefore, see no valid ground to interfere with the order of refusal and consent by the State Board.

11. In the result, the writ applications being devoid of merit, are dismissed, but in the circumstances of the case without any order for costs.

S.K. Mohanty, J.

12. I agree.