Orissa High Court
Sailabala Mishra vs State Of Odisha And Others on 18 February, 2025
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.2348 of 2024
Sailabala Mishra .... Appellant
-versus-
State of Odisha and others .... Respondents
Learned advocates appeared in the case:
For Appellant : Mr. S.K. Padhi, Senior Advocate
For Respondents : Mr. S.K. Mishra, Advocate
(for opposite party no.2)
Mr. P.K. Mohanty, Senior Advocate
(for respondent nos.3 and 4)
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA,
THE ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
--------------------------------------------------------------------------------------------------
Dates of hearing: 6th and 18th February, 2025 Date of Judgment: 18th February, 2025
-------------------------------------------------------------------------------------------------- ARINDAM SINHA, ACJ.
1. The appeal has been preferred against judgment dated 19 th April, 2024 made by the learned single Judge. Mr. Padhi, learned senior advocate appears on behalf of appellant and submits, by Page 1 of 11 impugned judgment not only his client's writ petition was dismissed but there was purported decision on his client's right, title and interest in respect of the land, over which her hotel stands.
2. His client applied for consent under provisions in section 25, Water (Prevention and Control of Pollution) Act, 1974. The application was made online bearing no.821184 dated 10 th August, 2016. He draws attention sub-section (7) under section 25 to submit, on expiry of period of four months, consent was not expressly granted. There was no refusal earlier. In the circumstances, unconditional consent was deemed to have been there. Sub-section(7) under section 25 is reproduced below.
"(7) The consent referred to in sub-section (1) shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months of the making of an application in this behalf complete in all respects to the State Board."
(emphasis supplied)
3. Rival adjacent hotel owner lodged complaints with the human rights authority and obtained directions, used to activate respondent no.2 [State Pollution Control Board (SPCB)]. The authority got into the act and, inter alia, issued letter dated 6th April, 2023 making WA no.2348 of 2024 Page 2 of 11 requisitions relating to alleged mismatch of ownership identity of his client in respect of the hotel/building. SPCB followed up by revoking the consent on communication dated 23rd July, 2024. He clarifies, the writ petition was filed challenging said requisition dated 6th April, 2023. After impugned judgment was made the revocation happened, obviously based on observations and findings made in the judgment. He submits, the consent was unconditionally granted and withdrawal of consent stands provided for in section 27. Provisions in the section were not resorted to in revoking the consent. There being revocation, unconditional consent cannot be disputed. The revocation is illegal and ex facie shows the invoked provision to be, inter alia, section 33A without there being any test report on discharge of effluent by his client. He seeks interference in appeal.
4. Mr. Mishra, learned advocate appears on behalf of respondent no.2 (SPCB). He submits, there is no question arisen of unconditional consent granted by his client. The online application made in year, 2016 was not complete. Accordingly requisition dated 6 th April, 2023 was issued. Appellant could not comply with the requisitions and hence there was duly issued the communication dated 23rd July, 2024. WA no.2348 of 2024 Page 3 of 11
5. He refers to report on inquiry made on 6th December, 2022 with regard to Odisha Human Rights Commission Case no.2373 of 2022, filed by respondent nos.3 and 4 (owner of adjacent hotel). He relies on remarks made in the report indicating that his client had taken action to issue show-cause notice for running the hotel without obtaining 'consent to establish' (CTE) and 'consent to operate' (CTO). Further disclosures were made in the counter to show action taken by his client, culminating in said communicated dated 23 rd July, 2024. On query made he submits, description 'revocation of consent' was made in general. Clear case of his client is that CTE and CTO were never ever granted to appellant. He opposes the appeal.
6. Mr. Mohanty, learned senior advocate appears on behalf of respondent nos.3 and 4, who run the adjacent hotel. His clients were affected by indiscriminate discharge, both solid and of effluent, made by appellant from her hotel. Hence, for statutory remedy his client made complaints to several authorities. SPCB, when required appellant to comply, she could not furnish the compliance. However, in the meantime pursuant to observations made in the interim by the learned single Judge, appellant and his client had decided to amicably resolve the issue regarding the discharge. His clients were assured and WA no.2348 of 2024 Page 4 of 11 they would like to rely on the assurance that appellant will take steps to see that there will not be any such discharge in future affecting his clients. To that effect both appellant and his clients had filed their respective affidavits in the writ petition.
7. Under challenge in the writ petition was requisition dated 6 th April, 2023. It refers to online application no.821184 dated 10 th August, 2016. The requisitions contained in the letter are not supported by a statement that referred therein online application dated 10th August, 2016 was incomplete. Instead, there is reference to some documents filed by respondent nos.3 and 4 leading to the requisition made, of mismatch on title documents. Significant is further omission regarding quality of effluent being discharged by appellant, if at all.
8. Reliance was placed on report of inquiry dated 6th December, 2022 made by respondent no.2 with regard to OHRC Case no.2373 of 2022. We reproduce below clauses (e) and (j) from observations made in the inspection.
"(e) On the day of inspection it was observed that repairing work was going on inside the hotel, hence no hotel activities were marked."
xxx xxx xxx WA no.2348 of 2024 Page 5 of 11
(j) The said plot of Hotel Swaraga is in the 2nd right side plot of Nolia Sahi Road just after hotel Swapnapuri so if both the owners of two hotels will not mutually maintain good Harmony with each other then this type of problem will arise every now and then."
(emphasis supplied) The facts as it emerges are that after there was deemed unconditional consent for appellant to operate the hotel, at the time of complaints made by respondent nos.3 and 4 and consequently the inquiry, the hotel was not running. Thus conclusion must be that there cannot be a case of discharge of effluent in violation of the consent.
9. It does appear from impugned judgment there were observations and findings on appellant's title. Case made out in the writ petition was challenge to said requisition letter dated 6 th April, 2023. The letter required, inter alia, appellant to demonstrate there was no mismatch in title documents. The SPCB followed up by revoking the consent in invoking provisions under sections 33A in the Act of 1974 and 31A of Air (Prevention and Control) Act, 1981. At this stage Mr. Mishra clarifies, the communication be read as issued under section 33A. We accept the submission because there is no WA no.2348 of 2024 Page 6 of 11 reference in said under challenge requisition dated 6 th April, 2023 to provisions in the Act of 1981.
10. Section 33A (in the Act of 1974) provides for power to give directions. The section is reproduced below.
"33A. 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."
On perusal of the communication we find, power exercised was to revoke consent to operate and direction to stop operation with immediate effect till compliance shall be furnished to the office. We WA no.2348 of 2024 Page 7 of 11 reproduce below the direction made by said communicated dated 23 rd July, 2024.
"NOW THEREFORE, by virtue of the power conferred under section 31A of the Air (Prevention & Control of Pollution) Act 1981 and section 33A of Water (Prevention & Control of Pollution) Act, 1974 and Rules framed thereunder, the competent authority in the State Pollution Control Board, Odisha after careful consideration of hereby revoked to consent to operate / granted to your unit and directed to stop operation with immediate effect forthwith till compliance shall be furnished to this office immediately. You are also directed to intimate the date of stoppage of operation of your unit forthwith FAX/Speed post failing which it will be presumed that you have violated this direction and appropriate legal action shall be initiated against you and your unit without giving further notice."
(emphasis supplied)
11. Refusal or withdrawal of consent by the State Board is provided for in section 27 of Water (Prevention and Control of Pollution) Act, 1974. The section is reproduced below.
"27. Refusal or withdrawal of consent by State Board.--
(1) A state Board shall not grant its consent under sub-
section (4) of section 25 for the establishment of any WA no.2348 of 2024 Page 8 of 11 industry, operation or process, or treatment and disposal system or extension or addition thereto, or to the brining into use of a new or altered outlet unless the industry, operation or process, or treatment and disposal system or extension or addition thereto, or the outlet is so established as to comply with any conditions imposed by the Board to enable it to exercise its right to take samples of the effluent.
(2) A State Board may from time to time review-
(a) any condition imposed under section 25 or section 26 and may serve on the person to whom a consent under section 25 or section 26 is granted a notice making any reasonable variation of or revoking any such condition;
(b) the refusal of any consent referred to in sub-
section (1) of section 25 or section 26 or the grant of such consent without any condition, and may make such orders as it deems fit.
(3) Any condition imposed under section 25 or section 26 shall be subject to any variation made under sub- section (2) and shall continue in force until revoked under that sub-section."
It will appear from above reproduced provision, withdrawal of consent relates to a variation made regarding terms and conditions WA no.2348 of 2024 Page 9 of 11 imposed while granting it. There is also provision for subsequently withdrawing the variation. On perusal of said requisition dated 6 th April, 2023 and communication dated 23rd July, 2024, we have not been able to see a variation imposed on unconditional deemed consent had by appellant. There is nothing to show from the counter filed by SPCB that a sample of effluent discharged by appellant was ever collected or the collection prevented by appellant. The only report on inquiry made with regard to the human rights case gives indication that some repair work was going on in the hotel and it was not in operation. We may also say, the arrangement of sections has section 33A following section 27, for exercise of power to enforce performance of the functions of the Board, under the Act.
12. We are clear in our mind as to what was appellant's challenge before the learned single Judge. We are also clear that consequence of the challenge must necessarily affect subsequent communication dated 23rd July, 2024 and invite our adjudication regarding exercise of power thereby.
13. In view of aforesaid, said requisition dated 6th April, 2023 and communication dated 23rd July, 2024 are set aside and quashed. Impugned judgment is reversed in appeal. SPCB must act in WA no.2348 of 2024 Page 10 of 11 accordance with law on fact established that appellant enjoys unconditional consent. So far as appellant and respondent nos.3 and 4 are concerned, they have filed respective affidavits in the writ Court and any act at variance to statements made therein may, on it being brought to notice of this Court, be a case of consideration, inter alia, for grant of leave to prosecute.
14. Mr. Padhi seeks direction consequent to our interference in appeal. Appellant will communicate certified copy of this judgment order to respondent no.2, for giving effect within two weeks thereof.
15. The appeal is disposed of.
( Arindam Sinha ) Acting Chief Judge ( M.S. Sahoo ) Judge dutta Signature Not Verified Digitally Signed Signed by: AJIT KUMAR DUTTA Reason: Authentication Location: ohc Date: 19-Feb-2025 20:17:02 WA no.2348 of 2024 Page 11 of 11