Holding

The State Government may validly declare an area as an Air Pollution Control Area by Gazette notification even if no rules prescribing the manner of declaration have been framed; the absence of such rules does not divest the statutory power.

Summary

The Orissa State (Prevention and Control of Pollution) Board prosecuted Orient Paper Mills for exceeding air‑pollutant standards after the mill, situated in an area declared an Air Pollution Control Area by Gazette notifications (1984, 1986, 1988), failed to obtain consent. The Board framed charges under Section 37(1) of the Air (Prevention and Control of Pollution) Act, 1981, invoking Sections 21 and 22. The Sessions Court, and later the High Court, quashed the charges on the ground that the area could not be validly declared because the State had not framed rules prescribing the manner of such declaration under Section 54(2)(k). On appeal, the Supreme Court examined whether the phrase “in such manner as may be prescribed” in Section 19 makes the power to declare an area conditional on the existence of rules. The Court held that the wording means “if any” and does not divest the State’s power; a Gazette notification is valid even in the absence of rules, which only become applicable if made. Consequently, the Board’s prosecution could proceed. The appeal was allowed, setting aside the lower courts’ orders.

Issues considered

The validity of a Gazette notification declaring an area as an Air Pollution Control Area when no rules prescribing the manner of declaration have been framed under Section 54(2)(k).
Whether the phrase ‘in such manner as may be prescribed’ in Section 19(1) of the Air (Prevention and Control of Pollution) Act makes the power to declare an area conditional upon the existence of rules.

Legislation cited

Air (Prevention and Control of Pollution) Act, 1981s. 19, s. 2, s. 21, s. 22, s. 37, s. 54

Subjects

Air Pollution Control AreaGazette notificationStatutory interpretationSection 19Section 54Environmental lawPower of StateMay vs Shall

Judgment

)

ORISSA STATE (PREVENTION AND CONTROL OF A
POLLUTION) BOARD
V.

MIS. ORIENT PAPER MILLS & ANR.

MARCH I 0, 2003
B
[BRIJESH KUMAR AND DR. AR. LAKSHMANAN, JJ.)

Environmental laws: .

Air (Prevention and Control of Pollution) Act, 1981; Sections 19, 21, 22 C
and 37:

Gazette Notification declaring certain areas as Air Pollution Control
Areas without framing appropriate rules under the provision of the Act-
Validity of-Held: Under the provision of/aw The State Government possesses
power to notifY any area as Air Pollution Control Area by issuance of such D
declarations by Gazette notification-No other manner is prescribed nor
exists-Mere absence of rules would not divest the State of its statutory power
declaring any area to be Air Pollution Control Area-Hence notification valid.

Words & Phrases:
E
"Jn such manner as may be prescribed"-Meaning of in the context of
Section 19(1) of the Air (Prevention and Control of Pollution) Act, 1981.

Word "An"-Meaning of-Takes colour in context with and manner in
which is used.
F
*•
According to the prosecution, the respondent paper mill was situated
in the Air Pollution Control Area. It was found by the appellant-Pollution
Control Board that the said paper mill was emitting air pollutants in
excess of standard tolerance limit, and its analysis reports were sent to
the respondent but the same was not complied with. Appellant filed a G
complaint in the Court of SDJM against the respondent for committing
an offence punishable under Section 37(1) of Air (Prevention and Controi
of Pollution) Act. SDJM framed charges against the respondent for non-
complying with the provisions contained in Sections 21 & 22 of the Act.
Aggrieved, respondent filed a criminal Revision Petition which was allowed
H
741

t
(

742 SUPREME COURT REPORTS [2003] 2 S.CR.

A by the <;ourt of Sessions holding the area, where paper mill of the
respondent was situated, not declared as Air Pollution Control Area in
accordance with law. On appeal, the order was upheld by the High Court.
Hence the present appeal.

Allowing the appeal, the Court
• B
HELD: 1.1. 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
Pollution (Prevention and Control) Board and in the manner as may be
C prescribed by Rules, framed for the purpose, by the State Government in
exercise of its powers under Section 54(2)(k) of the Air (Prevention and
Control) Act. [746-B-C; 747-AI

1.2. Though the Act under Section 19 vests the State Government
· with power to notify any area, in an official gazette as Air Pollution
D 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 says " ...... such manner as may be prescribed" and not "in the
manner prescribed", or " ...... in the prescribed manner". The expression
used leaves some lever or play in the working of the provision. The
E 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. The
reading of the provision under consideration makes it clear that the
p manner of declaration is to be followed 'as may be prescribed' i.e. "if
any" prescribed. Thus, in case the manner is not prescribed under the
Rules, there is no obligation or requirement to follow any, except whatever
the provision itself provides viz. Section 19 in the instant case which is .. _
also complete in itself even without any manner being prescribed to read
the provision omitting this part "in such manner as may be prescribed".
G Merely. by absence of Rules, the State would not be divested of its powers
to notify in official gazette any area declaring it to be air pollution control
area. In case, however, the Rules have been framed prescribing the
manner, undoubtedly the declaration must be in accordance with such
rules. The power which vests in an authority would not cease to exist
H simply for the reason that the rules have not been framed or the manner
ORISSASTATE(PREVEN ANDCON.OFPOLL.)BOARD v.ORIENTPAPERMILLS 743

of exercise of the power has not been prescribed. A
1750-D, H; 752-A, B, C, D; 753-C)

T Cajee v. Jormanik Siem and Anr., AIR (1961) SC 276, followed.

1.3. Once the manner is prescribed under the rules undoubtedly the
declaration of the .irea has to be only in accordance with the manner B
prescribe.d but absence of Rules will not render the Act inoperative. Non-
framing of Rules does not curtail the power of the State Government to
declare any area as air pollution control area by means of a notification
published in the official gazette. The part of the provision 'in such manner
as may be prescribed" would spring into operation only after such manner
is prescribed by framing the rules under Section 54 (2)(k) of the Act. The C
relevant notifications issued by the Government cannot be said to be
contrary to any rules in existence as framed by the Government.
1755-C-D-El

T Cajee v. Jormanik Siem and Anr., AIR 1961 SC 276, followed. D
Surinder Singh v. Central Government and Ors., 119861 4 SCC 667,
relied on.

State of Uttar Pradesh v. Jogendra Singh, AIR (1963) SC 1618 and
The textile Commissioner of the Government ofIndia and Ors. v. Shri Jagdish
Process Pvt. Ltd and Anr., 119771 2 sec 578, distinguished. E
f 2. The whole working and functioning of the Act which is meant for
controlling the air pollution cannot be withheld and rendered nugatory
only for the reason of absence of the rules prescribing the manner
declaring an air pollution control area which otherwise is provided to be
notified by publication in an official gazette. 1756-E-FJ F

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
331 of 2003.

From the Judgment and Order dated 29 .3 .200 I of the Orissa High
Court in Cr!. M.C. No. 5135 of 1997. G
J.R. Das, G. Biswal and S. Mishra for the Appellants.

P.N. Gupta and Ms. Happy, for the Respondents.

The Judgment of the Court was delivered by
H
744 SUPREME COURT REPORTS [2003) 2 S.C.R.

A BRIJESH KUMAR, J. Leave granted.

This is an appeal preferred by the Orissa State (Prevention and Control
of Pollution) Board (for short, "Board"), against the judgment of the Orissa
High Court passed in Criminal Revision, upholding the order passed by the
Addi. Sessions Judge Rourkela, quashing the charges framed against the
B respondent under Section 37 (I) of the Air (Prevention and Control of
Pollution) Act, 1981 (for short "the Act").

According to the prosecution, the respondent Orient Paper Mills Brajraj
Nagar, Dist. Sambalpur, engaged in manufacturing of Paper and Paper Board
Caustic Soda and Chlorine etc. is situate in an area which falls within the Air
C Pollution Control Area, as per Gazette Notifications Nos. 1292 dated 20.7.84,
No. 1021 dated 5.8.86 and No. 462 dated 17.3.88. The consent was granted
to the respondent 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. I was
emitting the air pollutants in excess of tolerance limit prescribed in respect
D of SPM (suspended particulate matter) particularly in boilers No. 9 and JO.
The analysis report in regard to the offending <~mission 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.
E According to the Board the respondent failed to comply with the consent
condition thereby committed an offence punishable under Section 37 (I} 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.

F 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 before the Sessions Court for setting aside the order framing
the charge, on the ground that there was no evidence to show that the area
in which the industry-respondent No. I is located is an ar~a declared in
G accordance with law viz. Section 19 of the Act as Air Pollution Control Area.
The plea of the respondent that in absence of rules prescribing the manner for
declaration of an area as Air Pollution Control Area, the State Government
illegally notified the area as such, does not seem to have found favour with
the learned Magistrate on the ground that the word used in Section 19 is
H "may" and not "shall" therefore it was not mandatory for the State to prescribe
--- _,
ORISSA STATE(PREVEN. AND CONT. OF POLL.) BOARD 1•. ORIENT PAPER MILLS (KUMAR,!.] 745

.,_... / the manner for declaring an area as Air Pollution Control Area. The learned A
Addi. Sessions Judge however set aside the order passed by the Magistrate
' and allowed the revision, taking the view that the State Government could
notify an area as Air Pollution Control Area only in the manner prescribed
under the Rules. In absence of rules it could not be done. Therefore there was
no prima facie case against the Respondent for violation of Sections 2 I and
22 of the Act. The order passed by the Addi.Sessions Judge has been upheld B
by the High Court with an observation that there was no illegality or irregularity
in the order.

We may at this stage peruse the relevant provisions of the law. Section
21 of the Act provides that subject to the provisions of the said Section no
person shall establish or operate any industrial plant in an air pollution control
c
area without previous consent of the State Government. An industry which
is functioning since before the declaration of the area as Air Pollution Control
Area, it shall apply to the Board for consent within the period prescribed for
the purpose. Section 22 provides as under:-
D
"Section 22 - Person carrying on industry, etc. not to allow emission
of air pollutants in excess of the standards laid down by the State
Board - No person operating any industrial plant in any air pollution
control area shall discharge or cause or permit to be discharged the
emission of any air pollutant in excess of the standards laid down by
the State Board under clause (g) of sub section 1 of Section 17." E
•b-1'
Section 19 empowers the State Government to declare an area as Air Pollution
Control Area. The relevant part of Section 19 reads as follows.

"19. Power to declare air pollution control areas - (I) The State
Government may, after consultation with the State Board, by F
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.- G
~·'
(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 H
--:-
746 SUPREME COURT REPORTS [2003) 2 S.C.R.
,,--
A parts thereof.
(3) . . . . . . . . . . . .

(4) . . . . . . . . . . . .
'
(5) . . . . . . . . . . . . }"
B 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
C Control Area is to be declared as such by Notification in the Official Gazette.
The plea of the appellant, however, is that Notifications have been issued by
the State Government in due exercise of its powers vested under Section 19
of the Act and pub Iished in the Official Gazette from time to time, whjch do
comply with Section 19 of the Act.

D We may at this juncture also refer to Section 54 of the Act which
relates to the power of the State Government to make Rules. It reads as
under:-

"54- Power of State Government to make rules - (I) Subject to
the provisions of sub section 3, the State Government may, by
E notification in the Official Gazette, make rules to carry out the purposes
of this Act in respect of matters not falling within the purview of
Section 53.

2. In particular, and without prejudice to the generality of the
foregoing power such rules may provide for all or any of the
F following matters, namely;-
w ......................................... .
(k) the manner in which any area or areas may be declared as air
pollution control area or areas under sub section (I) of Section
19 ... · .......... .
G

The word "prescribed" has been defined under Clause (n) of Section 2
of the Act as follows:-
.
,'

H "n - "prescribed" means prescribed by Rules made under this Act by ..,,..
.
ORISSA STATE(PREVEN. AND CONT. OFPOLL.) BOARD r. ORIENT PAPER MILLS [KUMAR, J.] 747

- the Central Government or, as the case may be, the State Government."

Therefore the manner in which air pollution control area is to be declared
A

as such, would be prescribed by Rules, framed for the purpose, by the State
Government in exercise of its powers under Section 54 (2)(k) of the Act. The
Notification notifying the area is to be published in the Official Gazette. The
factual position which admits of no doubt is that Rules have not been framed B
by the State Government under Section 54 (2)(k) of the Act prescribing the
manner in which Air pollution Control Area is to be declared. The appellant,
regarding fulfillment of the requirement under sub section (I) of Section 19
of the Act, has drawn the attention of the Court only to the Gazette
Notifications issued by the State Government under Section 19( I) of the Act C
. Copies of such Notifications have also been annexed along with the appeal.
The first notification is dated 6.6.84, it is reproduced below:-
"THE ORISSA GAZETTE
Extraordinary
Published by Authority
No. 1292 Cuttack, Friday, July 20 1984/Asadha 29, 1906
D
Department of Scfonce Technology and Environment

Notification
The 5th June 1984
E
No. 556- Env. III-3/84-STE- In exercise of powers under Section
f 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:-
F
!. Areas declared as Air Pollution Control Areas:
Xxxxxxxxxx
2. Premises of Industries declared as Air Pollution Control Area

G
to
32
33. Orient Paper Mills, Brajrajnagar, Sambalpur district
xxx xxx xxx xxx H
748 SUPREME COURT REPORTS [2003] 2 S.C.R.

A 35. Charge Chrome Plant of FACOR, Randia, Bhadrak Balasore
District.
By Order of the Governor
-
G.B.Mu
Addi. Secretary to Government"
B In supersession of the above notification, the other notificatfon dated 8. 7 .86
has been published, which is as under:-
"THE ORISSA GAZETTE
Extraordinary
Published by Authority
c
No. 1021 CUttack, Tuesday, August 5, 1986/Sravana 14, 1908 ..... -.,.,
Department of Science Technology and Environment
Notification
The 8th July, 1986

D No. 10985-Enn. III-5/86-STE- In exercise of powers under Section
19(1) of the Air (Prevention and Control of Pollution) Act, 1981 and
in supersession of notification No. 5564- Env. Ill-3/84-STE, dated
the 6th June, 1984 the Governor is pleased to declare the areas and
premises of all the following industries as Air Pollution Control Areas
within the State of Orissa for the purposes of the said Act.
E
I. Premises of major, medium and small scale industries old and
new and the premises of industries states under following '
categories of industries specified under the Air Pollution Control
Act.

F (i)
to
(xi)
(xii) Paper and pulp (including paper products) industries I
(xiii) . . . . . . . . . . . .
--
G
to
(xvi) .......... .
By order of the Governor
K.K. Patnaik
H Dy. Secretary to Government"
ORISSASTATE(PREVEN.ANDCONT.OFPOLL.) BOARD"· ORIENTPAPERMILLS[KUMAR, J.] 749

- ,
Yet another Notification issued in supersession of the previous Notifications A
dated 27/29th February, 1988, is as follows:-
"THE ORISSA GAZETTE
Extraordinary
Published by Authority
B
No. 462 Cuttack, Thursday, March 17, 1988/ Falguna 27, 1909
Department of Science Technology and Environment
Notification
The 27 /29th, February, 1988
No. 3044-ENV-l-3/88-STE. In exercise of the powers conferred by C
Sub-Section (I) of Section 19 of the Air (Prevention and Control of
Pollution Act, 1981 (14of1981) and in supersession of the notification
of the Government of Orissa Deptt. Of Science, Technology and
Environment No. 10985/STE, dated 8th July, 1986 the State
Government after consultation with the State Board, do hereby declare
the areas specified in the Schedule given below as Air Pollution D
Control areas within the State of Orissa for the purposes of the said
Act, namely:

SCHEDULE

1. Master Plan areas coming under the Cuttack Development Area E
constituted under sub-section (1) of section 3 of the Orissa
Development Authorities Act, 1892.
2. Master Plan Areas coming under the Bhubaneswar Development
Area constituted under sub-section (I) of section 3 of the Orissa
Development Authorities Act, 1982. F
3. Master Plan areas coming under the Greater Sambalpur
Improvement Trust constituted under section 7 of the Orissa
Town Planning and Improvement Trust Act, 1956.

4. Master Plan Areas coming under Rourkela Improvement Trust
constituted under section 7 of the Orissa Town Planning and G
Improvement Trust Act, 1956.

5. Master Plan Areas coming under Talcher, Angul Meramudali
Regional Improvement Trust constituted under Section 7 of the
Orissa Town Planning and Improvement Trust Act, 1956.
H
750 SUPREME COURT REPORTS (2003] 2 S.C.R.

A 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 I to 6 above.

By order of the Governor
R.C. Sama!
B
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.

C 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 ,
D 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 manner as may be prescribed" which part we put into bracket
E as follows:

"19. Power to declare air pollution contro! areas

(I) The State Government may, after consultation with the State Board,
by notification in the Official Gazette, declare [in such manner as
F may be prescribed] any area or areas within the State as air pollution
control area or areas for the purposes of this Act.

(21--------

(31--------
G (41---------

Section 19 says " : ..... such manner as may be prescribed' and not
"in the manner prescribed". or " . . . . . in the prescribed manne.r". The
expression used leaves some lever or play in the working of the provision.
H We would like to lay emphasis on the use of the word· as' which is significant.
ORISSA STATE(PREVEN. AND CONT. OFPOIL.)BOARD 1•. ORIENTPAPERM!LLS[KUMAR,J.] 75 J

The manner is dependent upon "as" may be prescribed, if it is not prescribed, A
there is no manner available such as to be followed. The meaning of the word
'as' has been indicated in "Concise Oxford English Dictionary, Tenth Edition
2002" amongst others to mean as follows:

"Used in comparison to refer to the extent or degree of something;
used to indicate by comparison the way that something happens; B
during the time of being" (emphasis supplied)

In "Words and Phrases Permanent Edition 4" 1969 Edition, in general amongst
others, at Page 514 its meaning has been indicated as follows:

"As" means "to the extent", "in the manner" and "when" ; and may C
be employed to indicate a combination of time with extent or manner.
Moore v. Coates, D.C. Mun. App., 40 A.2d68,70." (Emphasis supplied)

It is further indicated to mean importing a contingency and at page 520, it
is indicated as follows:
D
"When, importing a Contingency, a devise to certain children "as"
they arrive at the age of 21 means "when" they arrive at such age"
(Emphasis applied)

Further we find at Page 549 the phrase "as may be prescribed" has been
indicated to mean as follows: E
"The phrase "as may be prescribed'', in constitutional amendment
authorizing certain cities to adopt or amend their charters, subject to
such limitations as may .be prescribed by legislature, means that future
legislation, as well as that existing when city first takes out or amends
charter may limit its action" Vernon's Ann. St.Const. art. I I, $ 5. Dry F
v. Davidson, Tex Civ.App., 115 S.W.2d659,691. (emphasis applied)

In "Law Lexicon" by P. Ramanatha Aiyar 2nd 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 G
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 applied)

In one of the cases decided by this Cou11, to be referred later in this Judgment, H
752 SUPREME COURT REPORTS (2003] 2 S.C.R.

A "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
B 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 'as may be prescribed' i.e. "if any" prescribed.

C Thus, in case manner is not prescribed under the Rules, there is no
obligation or requirement to follow any, except whatever the provision itself
provides viz. Section 19 in the instant case which is also complete in itself
even without any manner being prescribed as indicated shortly before to read
the provision omitting this part "in such manner as may be prescribed".
Merely by absence of Rules, the State would not be divested of its powers
D to notify in official gazette any area declaring it to be air pollution control
area. In case, however, the Rules have been framed prescribing the manner,
undoubtedly the declaration must be in accordance with such rules.

On the proposition indicated above, a decision reported in AIR 1951
SC page 276 T. Cajee v. Jormanik Siem and Anr. would be relevant. The
E matter pertained to removal of Siem from the office namely the Chief Head
man of the area in the district council governed by Schedule VI of the
Constitution. The High Court took the view that the District Council could
act only by making a law with the assent of the Governor. So far as the
appointment and removal from the office of a Siem is concerned, provision
p contained in para 3( I) (g) of the Schedule was referred to, which empowered
the District Council to make laws in respect of the appointment and succession
of office of Chief and Headmen. The High Court took the view that in
absence of framing of such a law, there wou)d be no power of appointment
of a Chief of Siem nor for his. removal eit'i11fu.. This court negated the view
taken by the High Court observing that " ..it seems to us that the High Court
G read far more into paragraph 3(1 )(g) than is justified by its language. Paragraph
3(1) is in fact something like a legislative list and enumerates the subjects on
which the District Council is competent to make laws ....... But it does
not follow from this that the appointment or removal of a chief is a legislative
Act or that no appointment or removal can be made without there being first
H a law to that effect". This court found that para 2(4) relating to administration
ORISSA STATE(PREVEN. AND CONT. OF POLL.) BOARD r. ORIENT PAPER MILLS [KUMAR,J.) 753

of an autonomous district, vested in the District Council such powers and A
further observed as under:

"The Constitution could not have intended that all administration in
the autonomous distriets should come to a stop till the Governor
made regulations under paragraph 19(1)(b) or till District Council
passed laws under para 3(1)(g) ...... Doubtless when regulations are B
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

- - f
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
C

frame rules.

Learned counsel for the appellant relies upon a decision reported in D
[1987] 1 SCC page 658, B.K. Srinivasan and Ors. v. State of Karnataka and
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. v. Ganesh Das Bhojraj. The
question related to the publication of the notification under the Customs Act E
regarding levy of customs duty, publication of the notice/notification and the
manner in which it was to be done. This court, after considering a number
of decisions on the point concluded as follows: -

"Further in the case of New Tobacco Co. the court relied on the
decision in B.K. Srinivasan. In that case (in para 15) after considering F
various contentions, the Court specifically held that where the parent

--
statute prescribes the mode of publication or promulgation that mode
must be followed. Where the parent statute is silent, but the subordinate
legislation itself prescribes the manner of publication, such a mode of
publication may be sufficient, if reasonable. G
From the aforesaid observations, it is plain and clear that the
decision in B.K. Srinivasan also reiterates that the notification will
take effect only when it is published through the customarily
recognised official channel, namely, the Official Gazette. We als0
agree with the reasons recorded in Mayer Hans George and hold that H
754 SUPREME COURT REPORTS [2003] 2 S.C.R.

A notification under Section 25 of the Customs Act would come into
operation as soon as it is published in the Official Gazette and no
further publication is required. Hence, the decision rendered in Pankaj
Jain Agencies represents the correct exposition of law on the subject.
The decision rendered in New Tobacco Co. followed in Garware
Nylons Ltd. does not Jay down the correct law.
B
We don't think that the above decisions would be very relevant or of
much assistan.ce to the appellant.

Learned counsel appearing for the respondent referred to a decision
reported in AIR (1963) SC 1618 State of Uttar Pradesh v. Jogendra Singh
c on the point as to when the word 'may', means 'shall'. It has been held that
it depends upon the context of the use of the word "may". The matter related
to referring the case of government servant to the Tribunal. The relevant
provision read as under: -

"4(1) The Governor may refer to the Tribunal cases relating to an
D individual government servant or class of government servants or
government servants in a particular area only in respect of matters
involving

(a) conuption;

E (b) failure to discharge duties properly; '
~·

(c) irremediable general inefficiency in a public servant of more than
ten years' standing; and

(d) personal immorality."
F
It was held that Governor had a discretion in the matter cf referring
case of an individual officer to the Tribunal under sub rule (I), 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
G 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
H (1977] 2 sec page 57~ [The Textile Commissioner of the Government of
ORISSA STA'!' (PREVEN. AND CONT. OF POLL.) BOARD ,._ORIENT PAPER MILLS (KUMAR, J.) 755

India and Ors. v. Shri Jagdish Process Pvt. Ltd and Anr.]. It is also on the A
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"
which is Ver)' much provided in the provision itself and the publication has B
been notified in the same manner as provided under Section 19 of the Act.

We feel that so far the point relating to the meaning of the word "may"
used under Section 19 of the Act is concerned it is not relevant for resolving
the controversy we are concerned with. Once the manner is prescribed under C
( the rules undoubtedly the declaration of the area has to be only in accordance
with the manner prescribed but absence of Rules will not render the Act
inoperative. The power vested under Sec. 19 of the Act, would still be
exercisable as provided under the provision i.e. by declaring an area as air
pollution control area by publication of notification in the official gazette.
Non-framing of Rules does not curtail the power of the State Govemme11t to D
declare any area as air pollution control area by means of a notification
published in the official gazette. The part of the provision "in such manner
as may be prescribed" would spring into operation only after such manner is
prescribed by framing the rules under Section 54 (2)(k) of the Act. This view
as indicated earlier, is amply supported by the decision of this Court referred E
to above in the case of T Cavee (supra) which is a decision by a Constitution
Bench of this Court. It has been followed in a subsequent decision of this
Court reported in [1986] 4 SCC P.667, Surinder Singh v. Central Government
and Ors. The Central Government had not framed rules in respect of disposal
of property forming part of the compensation pool as contemplated under the
provisions of the relevant Act. It was claimed by one of the parties that the F
authority constituted under the Act had no jurisdiction to dispose of urban
agricultural property by auction sale in absence of Rules. The contention was
repelled with the following observations :

" ........ Where a statute confers powers on an authority to do certain
acts or exercise power in respect of certain matters, subject to rules, G
the exercise of power conferred by the statute does not depend on the
existence of rules unless the statute expressly provides for the same.
In other words framing of the rules is not condition precedent to the
exercise of the power expressly and unconditionally conferred by the
statute. The expression "subject to the rules" only means, in accordance H
A
756 SUPREME COURT REPORTS (2003] 2 S. C.R.

with the rules, if any. If rules are framed, 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
B in AIR (1996) SC p.1942, B.N. Nagarajan v. State of Mysore and AIR (1968)
SC p.464, Mysore State Road Transport Corpn. v. Gopinath. Reliance was
also placed on [1985] 2 S.C.C p.16, U.P. State Electricity Bocrrd v. City
Board, Mussoorie.

In view of the discussion held above, in our view it would not be
C 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
D 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 knowledge of
the notification and had also applied for consent of the Board which was
granted to the respondent. But it may be clarified that this is not the reason
for taking the view that we have taken, it is mentioned only by way of an
E additional fact and nothing more. The whole working and functioning of the
Act which is meant for controlling the air pollution cannot be withheld and
rendered nugatory only for the reason of absence of the rules prescdbing the
manner declaring an air pollution control area which otherwise is, provided
to be notified by publication in an official gazette which has been done in
this case.
F
For the foregoing reasons, we allow the appeal and set aside the order
passed by the learned Additional Sessions Judge in revision and th~ order of
the High Court affirming the same. ---
The further proceedings in the case to be resumed in the trial Court in
G
accordance with law on merits which shall not be affected in any manner by
observation, if any, made in this judgment.

S.K.S. Appeal allowed.