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2007 DIGILAW 472 (GAU)

Barnaddi Grammya Unnayan Samity v. State of Assam

2007-07-20

BROJENDRA PRASAD KATAKEY, J.CHELAMESWAR

body2007
JUDGMENT B.P. Katakey, J. 1. A non-Governmental organization, Barnarddi Grammya Unnayan Samity, society registered under Societies Registration Act, 1860, which claims to be involved in the field of rural development, education, health, women and child development and other public related activities filed a writ petition, registered as Public Interest Litigation No. 37/2006, challenging an undated order passed by the appellate authority constituted under the Air (Prevention and Control of Pollution) Assam Rules, 1991 communicated by the Deputy Secretary, Government of Assam, Forest Department to the General Manager, India Carbon Ltd. vide communication dated 16.01.2006, on the appeal preferred by the India Carbon Ltd. against the order dated 07.10.2005 passed by the Chairman, Pollution Control Board, Assam and to direct the State Respondents to constitute the appellate authority under the Air (Prevention and Control of Pollution) Act, 1991 (in short, "the Air Act") by framing rules in that regard and also to compensate the public of the locality who suffered due to the air pollution caused by India Carbon Ltd. W.P.(C) (Taken Up) No. 3457/06 has been registered on the basis of the representation submitted by 49 No. Kendriya Unnayan Samity, No. 2 Matgharia, Noonmati, Guwahati addressed to the Chief Justice of this Court alleging air pollution by India Carbon Ltd. and for issuance of direction to the appropriate authority to take appropriate measures to control the pollution so as to save the public of that locality from ravenous problem of pollution. Since the subject matter in PIL as well as the taken up matter is similar and identical, being allegation of causing pollution by India Carbon Ltd., both the writ petition and PIL have been taken up together for hearing and disposal. 2. Since the subject matter in PIL as well as the taken up matter is similar and identical, being allegation of causing pollution by India Carbon Ltd., both the writ petition and PIL have been taken up together for hearing and disposal. 2. The relevant facts giving rise to the present petitions are as follows: (I) The India Carbon Ltd. (in short, "ICL"), incorporated in the year 1961 and established a factory namely, Coke Calcination Plant for production of Calcined Petroleum Coke and Electrodes Carbon Paste at Noonmati, Guwahati in the district of Kamrup, Assam, was served with a notice dated 11.03.1996 issued by the Pollution Control Board, Assam asking it to show cause as to why necessary directions should not be issued leading to the closure, prohibition of regulation, operation or process or stoppage or regulation of supply of electricity, water or any other services, allegedly for creating pollution hazardous to the inhabitants of the area by the industry without adequate, effective and proper treatment and for its failure to comply with the direction issued by the Pollution Control Board on and 20.01.1996. It was also indicated in the said notice that though the consent to operate as required under Section 21 of the Air Act was refused in the year 1995-96, the said industry has been running. The ICL on receipt of such notice filed their show cause denying causing any pollution. The Pollution Control Board having not satisfied with such show cause vide order dated directed the ICL to take immediate action for controlling air pollution in the plant and for completion of the same within 31.07.1996, intimating it that failing which formal order for closure of the plant would be issued. The ICL was also directed to submit the action plan immediately so that the progress of the work could be monitored from time to time. It was further informed that the Board would conduct a stack monitoring survey in the mid week of July 1995 to study the operational efficiency of pollution control devices installed in the factory. The Pollution Control Board, thereafter, on 08.08.1996, in view of the failure of ICL to respond positively to the order dated 31.05.1996, passed an order in exercise of the power conferred under Section 31A of the Air Act directing closure of the industrial unit with immediate effect. The Pollution Control Board, thereafter, on 08.08.1996, in view of the failure of ICL to respond positively to the order dated 31.05.1996, passed an order in exercise of the power conferred under Section 31A of the Air Act directing closure of the industrial unit with immediate effect. However, the Pollution Control Board, subsequently on the assurance given by ICL to take appropriate measure to bring down the pollution level, has withdrawn the closure notice. On 11.01.2002 the Member Secretary, Pollution Control Board issued Anr. notice to ICL for showing cause as to why the appropriate direction under Section 31A of the Air Act should not be issued for violation of the provisions of the said Act and for its failure to comply with the direction issued by the Board on 01.02.2001 and 20.10.2001. The reply submitted by ICL having not found satisfactory by the Board and keeping in view the result of the analysis of the air samples conducted in the month of November, 2002 by the Board in the industry, the Board vide notice dated 21.01.2003 allowed ICL six months time, as requested, for rectification and modernization of pollution control system in the industry to bring down the emission level within the permissible limit and to deposit a sum of Rs. 5,00,000/- as bank guarantee, which period was, however, extended up to 18.10.2003 by the Pollution Control Board on 14.05.2003. (II) During pendency of such proceeding before the Pollution Control Board, one Subrata Hazarika filed a writ petition being W.P. (C) No. 7992/03 before this Court and a Single Bench of this Court on 23.09.2003 passed an interim direction directing the Pollution Control Board and the State machinery to make necessary enquiry into the allegations relating to emission of air pollutants in the atmosphere by the running of the industry of the ICL and if the same are found to be correct, to take appropriate measure for compliance of the provisions of the Air Act and other related laws. The Pollution Control Board, thereafter, monitored the stack of ICL on different dates and submitted its reports indicating emission of particulate matters beyond the permissible limit, for which the security deposit of Rs. 5,00,000/- made by the ICL was forfeited vide order dated 24.06.2004. Vide Anr. The Pollution Control Board, thereafter, monitored the stack of ICL on different dates and submitted its reports indicating emission of particulate matters beyond the permissible limit, for which the security deposit of Rs. 5,00,000/- made by the ICL was forfeited vide order dated 24.06.2004. Vide Anr. order dated 02.07.2004 the Pollution Control Board directed closure of the industry immediately and not later than 05.07.2004 and to report compliance and also stopping of supply of electricity and water to the industry. The said order of the Pollution Control Board dated 12.07.2004 was, however, temporarily withdrawn at the intervention of the Chief Minister as well as the Minister of State, Environment and Forest, granting the ICL four months time, with effect from 14.07.2004, to bring down the emission of pollutants to the prescribed limits fixed by the Board. (III) The ICL, thereafter, filed the writ petition being W.P. (C) No. 6356/04, challenging the order dated 24.06.2004 of the Pollution Control Board forfeiting the security deposit. Another Single Bench of this Court on 02.09.2004 took up the said writ petition together with W.P. (C) No. 6461/04 and W.P. (C) No. 5944/04 for consideration, having based on common causes of action and passed an interim order directing the Pollution Control Board to carry out and monitor stack emission/ambient air, hole and platform at the chimney, electrical connection etc. in the industry in question on different dates and to submit the report before the Court on or before 11.10.2004. Accordingly, the required monitorings were done by the Pollution Control Board and submitted the report to the effect that the emission from the kiln stack were found to exceed the permissible limit. However, all the parameters for ambiance air were found to be within the prescribed standard. (IV) The writ petition being W.P. (C) No. 5944/04 was filed by Sri Subrata Hazarika challenging the decision of the Minister dated 12.07.2004, whereby the Pollution Control Board was directed to give further time to enable the ICL to comply with all measures to bring down the parameter of emission within the permissible limit and to withdraw the closure notice issued by the Pollution Control Board. A public interest litigation being PIL No. 37/05 was also filed by a registered society, namely, Kalyaneswari, for the same cause of action. A public interest litigation being PIL No. 37/05 was also filed by a registered society, namely, Kalyaneswari, for the same cause of action. The said PIL No. 37/05 was heard and disposed of by a Division Bench of this Court vide order dated 17.08.2005 refusing to interfere with the order of the Minister dated 12.07.2004 on the ground that the Board vide order dated 14.07.2004 has already allowed the ICL further four months time to bring down the emission of pollutants to the prescribed limits fixed by it withdrawing temporarily the closure notice issued by it and also considering the report of the Board Analyst, Central Laboratory, Pollution Control Board dated 01.06.2004 and 29.07.2005 (01.08.2005) to the effect that all parameters are within the limits prescribed for residential area. By the said order the Division Bench, however, gave liberty to the public interest litigant to move the Pollution Control Board with sufficient materials to show that the reports pertaining to ICL are factually incorrect and breach the environmental law, with further observation that in the event of filing such application, the same shall be adjudicated upon by the Pollution Control Board with due notice to all concerned. The writ petition being W.P. (C) No. 7992/03 and W.P. (C) No. 5944/04 filed relating to the matter concerning pollution by the said industry were also disposed of by the said Division Bench of this Court vide order dated 17.08.2005 in terms of the order passed on that day in PIL No. 37/2005. (V) Thereafter, representations were filed by the Petitioner in PIL No. 37/05, Kalyaneswari, a society registered under the Societies Registration Act, 1860 and also by Bamarddi Grammya Unnayan Samity through its Chairman Sri SubrataHazarika, (Petitioner in W.P. (C) No. 7992/03) before the Pollution Control Board, Assam on 29.08.2005 and 09.09.2005, respectively, claiming that the concerned industry has violated the provisions of Air Act by causing air pollution and emitting pollutant beyond the permissible limit into the air. A technical expert team of Pollution Control Board, Assam, thereafter, inspected the industry in question on 30.09.2005 with notice to the ICL and submitted the report suggesting (i) dismantling of the old stack completely, (ii) to connect the flue gas exit directly with the new system via gravity settling chamber without any dumper system, (iii) to make separate venting arrangement for venting flue gas from kiln due to power failure and (iv) to have parallel operation of D.G set with ASEB supply for uninterrupted operation of the total system. The Member Secretary of Pollution Control Board on 03.10.2005 asked the General Manager of ICL to attend the office of the Chairman on 06.10.2005 and accordingly the General Manager has participated in the discussion with the Chairman of the Pollution Control Board on that day. The Chairman, Pollution Control Board, thereafter, vide order dated 07.10.2005 issued the following directions: 1. Dismantling of old stack is to be completed within 3 (three) months. M/S India Carbon Ltd. should switch over to non-stop power supply arrangement. 2. Medical camp at an interval of every six months to be organized to check the health of the people of the nearby area surrounding the unit and report to be submitted with record to the Board. This should start by 25th October, 2005. 3. During this three months period from 08.10.2005, old stack can be used for 15-20 minutes period, which is required for switching over to the existing D.G. set, till the condition at SI. No. 1 is met. (VI) Being aggrieved, a representation was filed by the ICL before the Minister, Environment and Forest, Government of Assam on 07.11.2005, which was sent to the appellate authority for consideration, in view of the constitution of such appellate authority consisting of Chairman and two members by the Governor of Assam vide notification dated 23.11.2005. The appellate authority, accordingly considered the said representation as an appeal against the order dated 07.10.2005 passed by the Chairman, Pollution Control Board, Assam and upon admitting the same passed an order (undated) suspending operation of the order dated 07.10.2005 issued by the Chairman, Pollution Control Board, Assam, which was communicated by the Deputy Secretary, Government of Assam, Forest Department on 16.01.2006. (VII) The present PIL No. 37/06 as well as the public representation addressed to the Chief Justice of this Court, which has been registered as W.P. (C) (Taken Up) No. 3457/06, have been filed, thereafter, with the prayer, as already noticed above. 3. We have heard Mr. A. Mazumdar, the learned Sr. counsel appearing on behalf of the Petitioners in PIL No. 37/2006, Mr. Kapoor, the learned Sr. counsel appearing for ICL, Mr. B.C. Das, the learned Sr. counsel appearing for the Pollution Control Board, Assam, Mr. K.N. Choudhury, the learned Additional Advocate General, Assam appearing for the State Respondents as well as Mr. Rahman, Assistant Solicitor General for Union of India in both the writ petitions. 4. Mr. Mazumdar, the learned Sr. Counsel appearing for the Petitioners in the PIL referring to the facts narrated above has submitted that the industrial unit belonging to ICL is still emitting pollutants into the air, beyond the permissible limit fixed by the Pollution Control Board and in violation of the provision of Air Act, for which the Chirman of Pollution Control Board vide order dated 07.10.2005 rightly issued certain directions in exercise of the power conferred under Section 31A of the Air Act. It has further been submitted that the ICL in fact has not filed any appeal as required under Section 31of the Air Act, as admittedly a representation dated 07.11.2005 was filed by it before the Minister concerned, on which date admittedly the appellate authority under Section 31 of the said Act was not constituted by the Government of Assam and hence such representation cannot be treated as appeal by the ICL against the order dated 07.10.2005 passed by the Chairman of the Pollution Control Board, consequently the order passed by the appellate authority is illegal. In any case, according to the learned Sr. Counsel, it is evident from the affidavit filed by the Pollution Control Board that the consent to operate the industrial unit, as required to be obtained under Section 21 of the Air Act, has not been granted in favour of the industrial unit in question since the year 2000-01 and, therefore, the industrial unit belonging to ICL cannot be allowed to operate in view of the clear mandate of Sub-Section 1 of Section 21 of the said Act. Mr. Mr. Mazumdar further submits that because of the pollution caused by the industrial unit in question the population in the locality is suffering which is evident from the report of the Circle Officer dated 27.10.2006, which has been enclosed as Annexure to the affidavit filed by the Additional Deputy Commissioner on 27.02.2007 in W.P.(C) (Taken Up) No. 3457/06. Hence, according to the learned Sr. Counsel, the Pollution Control Board has rightly directed the ICL to dismantle the old stack within three months, which was found to be the cause for emission of pollutant into the air beyond the permissible limit. Therefore, according to the learned Senior Counsel, the industrial unit may be directed to be closed its operation, till it conforms the requirements under the Air Act as well as the direction of the Pollution Control Board. 5. Mr. Kapoor, the learned Sr. Counsel appearing for the ICL, per contra, has submitted that necessary consent to operate the industry in question as required under Section 21 of the Air Act has been obtained and such consent to operate being not for a particular period, i.e. one year, is still valid and the Pollution Control Board cannot insist for obtaining consent to operate again, there being no provision in that regard in the Air Act. Mr. Kapoor has further submitted that it is evident from the reports dated 01.06.2004 and 29.07.2005 (01.08.2005) submitted by the technical team of the Pollution Control Board and as observed in the order dated 17.08.2005 passed by a Division Bench of this Court in PIL No. 37/2005 that the industrial unit belonging to ICL has not violated the provision of the Air Act. Emission from the said industrial unit was found to be within the limit prescribed for the residential area and, therefore, there is no question of polluting the air by the industrial unit in question. Mr. Kapoor, in order to substantiate has contention that no pollution has been caused by the industrial unit, even by using the old stack has referred to various reports obtained by the company from various persons and organizations. Challenging the order dated 07.10.2005, which is the basis for filing the PIL as well as the writ petition in the taken up matter, Mr. Challenging the order dated 07.10.2005, which is the basis for filing the PIL as well as the writ petition in the taken up matter, Mr. Kapoor has submitted that the said order of the Chairman, Pollution Control Board does not say as to how the industry in question has violated the provisions of the Air Act, or whether there was any emission of particulates into the air by the said industry beyond the permissible limit prescribed by the Pollution Control Board and without there being any finding recorded in that regard, no order as has been passed by the Chairman, Pollution Control Board on 07.10.2005 can be passed. According to the learned Sr. Counsel, the Chairman, Pollution Control Board has no authority to pass any order and issue any direction under Section 31A of the Air Act, as, such power vest on the Board only. In support of the contention that the Chairman has no power, the learned Sr. Counsel has placed reliance on a Single Bench decision of Karnataka High Court in M/s Suma Traders v. Chairman, Karnataka State Pollution Control Board, Bangalore and Ors. reported in AIR 1998 Karnataka 8. 6. Referring to the order dated 17.08.2005 passed by Anr. Division Bench of this Court disposing of the PIL No. 37/2005, Mr. Kapoor has further submitted that the present writ petition filed in the PIL as well as in the taken up matter are hit by the principles of res judicata as the issue relating to the emission of pollutants by the industry in question within the limits prescribed by the Pollution Control Board for residential area has already been decided in favour of the ICL and, therefore, the said issue cannot be raised again. According to the learned Sr. Counsel, the ICL has been subjected to a series of litigations and in fact those litigations have been initiated at the instance of the rival industry and not in public interest. It has further been submitted by Mr. According to the learned Sr. Counsel, the ICL has been subjected to a series of litigations and in fact those litigations have been initiated at the instance of the rival industry and not in public interest. It has further been submitted by Mr. Kapoor that though vide order dated 17.08.2005 passed in PIL No. 37/2005 directions were issued by this Court to adjudicate the applications that may be filed by the aggrieved person complaining about the pollution as well as the violation of the environmental laws, objectively and expeditiously, with due notice to all concerned, the Chairman, Pollution Control Board on 07.10.2005 has passed the order on the basis of the representations filed by the petitioners in earlier PIL No. 37/2005 and W.P. (C) No. 7992/03, even without supplying the copies of such representations to the ICL and even without furnishing any copy of the report purportedly submitted by the expert body of the Pollution Control Board, thereby violating the basic principles of natural justice as well as in violation of the aforesaid order dated 17.08.2005 passed in PIL No. 37/2005. Mr. Kapoor has further submitted that the statutory appeal against the order dated 07.10.2005 passed by the Chairman, Pollution Control Board having been pending, the present writ petitions are not maintainable. Mr. Kapoor in support of his plea of res judicata has placed reliance on the Apex Court judgment in State of Karnataka and Anr. v. All India Manufactures Organisation and Ors. reported in (2006) 4 SCC 683 . 7. Mr. Kapoor referring to the report of the Circle Officer dated 27.11.2006, on which the learned Sr. Counsel for the Petitioner in the PIL has placed reliance, has submitted that the said report cannot be the basis for recording the finding that the industrial unit in question is violating the environmental laws, as the purported enquiry was conducted without notice to the ICL and the said report does not disclose as to how the parameters of emission fixed by the Pollution Control Board has been violated by the industrial unit. Mr. Kapoor has further submitted that the Circle Officer being not a technical person having no technical expertise in environmental science, the report submitted by him has no value at all for the purpose of coming to any finding relating to the violation of environmental law by the industrial unit concerned. Mr. Kapoor has further submitted that the Circle Officer being not a technical person having no technical expertise in environmental science, the report submitted by him has no value at all for the purpose of coming to any finding relating to the violation of environmental law by the industrial unit concerned. Referring to the order dated 07.10.2005 passed by the Chairman, Pollution Control Board and which is the subject matter of the appeal under Section 31 of the Air Act and presently pending before the appellate authority constituted under the provisions of the said Act, Mr. Kapoor has submitted that though the Chairman in the said order has recorded that the General Manager of ICL has admitted certain things, those were in fact not admitted by the General Manager, for which an affidavit has been filed before this Court by the said General Manager disputing making any such admission. Mr. Kapoor, the learned Sr. Counsel has further submitted that the ICL has been subjected to the unnecessary harassment by the public interest litigant by reagitating the same issue, which has been decided in PIL No. 37/2005 and the present proceeding, therefore, is an abuse of the process of the Court as the ICL has been subjected to relitigation. Mr. Kapoor in support of his contention has placed reliance on the decision of the Apex Court in K.K. Modi v. K.N. Modi and Ors. reported AIR 1998 SC 1297 . 8. Mr. Das, the learned Sr. Counsel for the Pollution Control Board supporting the action of the Chairman, Pollution Control Board in passing the order dated 07.10.2005 has submitted that the industrial unit belonging to ICL was found to be violating the provisions of the Air Act since 1996 for which several show cause notices were issued and even the industrial unit was directed to be closed down once, which however, was subsequently revoked because the intervention of the Minister, Environment and Forest, Government of Assam and on the assurance of the ICL to comply with the requirements of the provisions of Air Act and the directions issued by the Pollution Control Board and to keep the emission level within the prescribed limit fixed by the Board. However, according to the learned Sr. However, according to the learned Sr. Counsel, as the said industrial unit has failed to control the emission level and keep it within the permissible limit, the Pollution Control Board had no alternative but to pass the order dated 07.10.2005. According to the learned Sr. Counsel, since the notices were issued earlier by the Board and the technical team of the Board found the industrial unit to have released the pollutants into the air beyond the permissible limit prescribed by the Board, no illegality can be found in passing the order on 07.10.2005 by the Chairman as the same was passed pursuant to the earlier notices issued by the Board. Mr. Das referring to the decision of the Apex Court in A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors. reported in (1999) 2 SCC 718 has submitted that the appellate authority constituted by the Government vide notification dated 23.11.2005 under Section 31(1) of the Air Act having not been constituted in terms of the observations made by the Apex Court in the said judgment, cannot be held to be legally constituted appellate authority and such appellate authority cannot, therefore, consider the appeal filed by the ICL challenging the order of the Board dated 07.10.2005. 9. Mr. Choudhury, the learned Additional Advocate General, Assam has submitted that though the Government of Assam vide notification dated 23.11.2005 has constituted the appellate authority as required under Section 31 of the Air Act, but in view of the observations of the Apex Court in A.P. Pollution Control Board (supra), the Government has decided to reconstitute the appellate authority under Section 31 of the said Act by accepting the observations of the Apex Court and such reconstitution is under process and the notification is expected to be issued within a short period of time. Mr. Choudhury, however, has submitted that as the statutory appeal is pending before the appellate authority, the State Respondents do not wish to express any view on the merit of the case. Mr. Rahman, the learned Assistant Solicitor General, has submitted that any industrial unit has to conform to the requirements of the environmental laws. 10. Mr. Choudhury, however, has submitted that as the statutory appeal is pending before the appellate authority, the State Respondents do not wish to express any view on the merit of the case. Mr. Rahman, the learned Assistant Solicitor General, has submitted that any industrial unit has to conform to the requirements of the environmental laws. 10. From the narration of the facts noticed above, it therefore, transpires that in the PEL as well as in the taken up matter it has been alleged that the industrial unit belonging to ICL has caused emission of particulates into the air beyond the limit prescribed by the Pollution Control Board, thereby causing air pollution resulting in health hazard for the residents of the locality. The said allegations have, however, been denied by the ICL contending that there is absolutely no pollution and the emission level is well within the permissible limit, for which the ICL has placed reliance on various reports submitted by various agencies and persons and also the reports of the Pollution Control Board itself. The basic question, therefore, is whether the industrial unit belonging to the ICL is polluting the air by releasing particulates into it beyond the limit prescribed by the Pollution Control Board and thereby, violating the provision of the Air Act and other environmental laws. There is also a dispute relating to the issuance of the order consenting to operate the industrial unit in question, as required under Section 21 of the Air Act. According to the Pollution Control Board, no consent to operate was accorded to the industrial unit since 2000-01 and according to the ICL, the consent to operate accorded by the Pollution Control Board initially being not for a particular year, there is no question of according consent to operate in each year and such course of action is not permissible under the provisions of the Air Act. 11. We shall first deal with the question of res judicata as raised by the learned Sr. Counsel for the ICL. The Apex Court in All India Manufactures Organization and Ors. 11. We shall first deal with the question of res judicata as raised by the learned Sr. Counsel for the ICL. The Apex Court in All India Manufactures Organization and Ors. case has observed that the doctrine of res judicata being based on the larger public interest and founded on two grounds, one being the maxim nemo debet bis vexari pro una et eadem causa (no one ought to be twice vexed for one and the same cause) and other, the public policy that there ought to be an end to the same litigation, the doctrine of res judicata, as a matter of principle, can be applied to public interest litigations and a judgment in a previous public interest litigation would be a judgment in rem and it binds the public at large and bars any member of the public from coming forward before the Court and raising any connected issue or an issue, which had been raised or should have been raised on an earlier occasion by way of public interest litigation. It therefore requires to be seen whether the matter in issue in the present public interest litigation as well as in the taken up matter was in the issue in earlier public interest litigation and whether such issue has been decided conclusively. In the earlier public interest litigation being PIL No. 37/2005 as well as the writ petitions filed, the issue no doubt was whether the industrial unit belonging to ICL caused any air pollution, violated the provisions of the Air Act or other environmental law. Another issue in the said PIL was whether the direction of the Minister, Environment and Forest, Government of Assam, dated directing the Pollution Control Board to withdraw the closure notice for violating the Air Act was legal and valid. A Division Bench of this Court vide order dated 17.08.2005 disposed of the said PIL refusing to interfere with the order of the Minister dated 12.07.2004 after observing that the Pollution Control Board by accepting such order passed an order on 14.07.2004 allowing the ICL four months time to bring down the emission of pollutants within the prescribed limits and withdrawing temporarily the closure notice and also noticed the reports dated 01.06.2004 and 29.07.2005 (01.08.2005) of the Board Analyst, Pollution Control Board indicating that all parameters are within the prescribed limit for residential areas. However, the Court has given liberty to the Petitioner in the said PIL as well as the writ petition to agitate the issue before the Pollution Control Board, if there is any violation of environmental laws. 12. An industrial unit though at one point of time may not emit pollutants beyond the limit prescribed by the Pollution Control Board but may subsequently do so in course of time, because of very many reasons. As because a Division Bench of this Court vide order dated 17.08.2005 passed in PIL No. 37/2005 has noticed the report of the Pollution Control Board's Analyst certifying that the industrial unit in question are not emitting the pollutants into air beyond the limit prescribed by the Pollution Control Board for residential area, it cannot be said that the Pollution Control Board cannot ascertain the veracity or otherwise of the subsequent allegation of emission of pollutants into air beyond the limit prescribed, even if the finding was recorded in the earlier proceeding that at the relevant point of time there was no pollution or violation of any provision of the Air Act. When fresh allegations relating to violation of Air Act or other environmental laws are made, the same has to be gone into. An industrial unit may not cause any pollution or violate the provisions of the environmental law at the point of time when a case was decided but it may cause pollution and violate the environmental law at the subsequent point of time. Moreover, as discussed above, the Court in the order dated 17.08.2005 granted liberty to approach the Pollution Control Board in case of violation of any environmental laws. The principles of res judicata, therefore, cannot be applied in such a situation. The decision of the Division Bench of this Court dated 17.05.2005 in PIL No. 37/2005 cannot, therefore, operate as res judicata in the subsequent public interest litigation being PIL No. 37/2006 as well as W.P. (C) (Taken Up) No. 3457/06, the said proceedings being on different cause of action. We, however, are not expressing our opinion as to whether refusal to interfere with the order of the Minister, Environment and Forest, Government of Assam dated 12.07.2004 will operate as res judicata as the said decision of the Minister dated 12.07.2004 is not the subject matter of the present proceedings. We, however, are not expressing our opinion as to whether refusal to interfere with the order of the Minister, Environment and Forest, Government of Assam dated 12.07.2004 will operate as res judicata as the said decision of the Minister dated 12.07.2004 is not the subject matter of the present proceedings. It is, however, will not be out of place to notice that either Section 31 or Section 31A of the Air Act does not provide any power on the State Government to issue any direction to the Pollution Control Board. However, the said point having not arisen in the present case, we are not expressing any final opinion in that regard. The contention of the ICL relating to the question of res judicata hence rejected. 13. The thrust of arguments of all the parties, except the State Respondents who have not expressed any opinion on merit in view of the pendency of the appeal before the appellate authority, revolves round the order dated 07.10.2005 passed by the Chairman, Pollution Control Board. As noticed above, according to the public interest litigant as well as the Pollution Control Board, the same was passed validly and on the basis of the show cause notices issued earlier by the Board on being found that the industrial unit belonging to ICL is emitting pollutants into air beyond the limit prescribed by the Pollution Control Board and, therefore, cannot be termed as the order passed by the Chairman. On the other hand, according to the ICL, there is no emission of pollutants into air beyond the permissible limit and the order dated 07.10.2005 was passed in violation of the principles of natural justice as well as in violation of the order dated 17.08.2005 passed by a Division Bench of this Court in PIL No. 37/2005 and the Chairman has no power and authority to pass such order as such power vests on the Board under Section 31A of the Air Act. 14. 14. As noticed above, the Pollution Control Board though initially on 11.03.1996 issued the notice to the ICL to show cause as to why necessary orders under Section 31A of the Air Act should not be passed and though pursuant to such notice an order dated 08.08.1996 was passed by the Chairman of the Board directing ICL to close down the industrial unit with immediate effect, the said order was admittedly withdrawn by the Pollution Control Board itself, as admitted in paragraph 11 of the affidavit dated 01.08.2006 filed by the Member Secretary of the Pollution Control Board in PIL No. 37/2006, on the assurance given by the ICL to bring down the pollution level. Another show cause notice dated 11.01.2002 was issued asking ICL to show cause as to why direction under Section31A of the Act should not be issued for the alleged violation of the Air Act, which culminated into passing of an order dated 21.01.2003 allowing six months time, as requested by ICL, for rectification and modernization of pollution system in the industry to bring down the pollution level within the limit and which period was, however, subsequently extended to 18.03.2003. Thereafter, vide order dated 02.07.2004 referring to the earlier show cause notices and the other various orders and noticing the failure on the part of the ICL to comply with the requirements of the Air Act, the Pollution Control Board passed an order, under Section 31A of the Air Act, directing closure of the industry immediately and not later than 05.07.2004, which order, however, was temporarily withdrawn by the Board on 14.07.2004 on the basis of the order of the Minister, Environment and Forest, Government of Assam dated 12.07.2004 and allowed the ICL four months further time with effect from 14.07.2004 to bring down the emission of pollutants within the prescribed limits fixed by the Board. It appears from the pleadings of the parties that certain reports were submitted by the Board Analyst, Pollution Control Board, Assam and in some reports as noticed in the order dated 17.08.2005 passed in PIL No. 37/2005 it was found that the emission level was within the prescribed limit and in some reports, for instance, report dated 02.12.2004, the emissions from the kiln stack were found to exceed the prescribed limit, however, the parameters for ambience air were found to be within the prescribed standard. It is an admitted position of fact that in the meanwhile the ICL has installed a new stack, which is claimed to be fitted with pollution control devices. 15. As discussed above, a Division Bench of this Court on 17.08.2005 disposed of the PIL No. 37/2005 by taking note of the reports dated 01.06.2004 and 29.07.2005 (01.08.2005) of the Board Analyst, Pollution Control Board and also the order dated 14.07.2004 passed by the Board granting four months more time to ICL to bring down the emission level within the prescribed limit, refusing to interfere with the order dated 12.07.2004 of the Minister, Environment and Forest directing the Pollution Control Board to withdraw the closure notice dated 02.07.2004. However, liberty was given to the public interest litigant to file representation before the Pollution Control Board and in the event of filing, to decide the same objectively with due notice to all concerned. The other writ petitions namely, W.P. (C) No. 7992/03 and W.P. (C) No. 5944/04, were also disposed of in terms of the said order. The public interest litigant in the said PIL as well as the Petitioner in W.P. (C) No. 7992/03 thereafter, filed representations before the Pollution Control Board alleging pollution by the industrial unit belonging to ICL by emitting pollutants into air beyond the prescribed limit and on the basis of which the order dated 07.10.2005 was issued by the Chairman, Pollution Control Board. Since no final action has been taken by the Pollution Control Board in terms of the earlier show cause notices issued, and in fact further opportunity was given to ICL to comply with the requirements, there has to be a further verification by way of inspection by the pollution Control Board to ascertain as to whether the ICL has complied with the requirement of law and brought down the emission level within the permissible limits fixed by the Pollution Control Board under Section 17(1)(g) of the Air Act, as Section 22 of the said Act debars any person from operating any industrial unit in violation of the standard laid down by the Pollution Control Board under Section 17(1)(g). It appears from the pleadings of the parties as well as the order dated 17.08.2005 passed in PIL No. 37/2005 that a report dated 29.07.2005 (01.08.2005) was submitted by the Board Analyst, after the order dated 14.07.2004 giving extension of four months time to comply with the requirement, that the emission level is within the prescribed limit for residential area. The said report, for sake of convenience, is quoted below: To, The Member Secretary, Pollution Control Board, Assam, Bamunimaidam, Guwahati-21 Dated Guwahati, the 1st Aug., 2006 Sub: Observation during Monitoring. Sir, As directed by you, I am submitting herewith my observations during Stack Monitoring at M/s India Carbon Ltd, Noonmati, Guwahati-20. We have conducted Stack Monitoring on the new kiln exhausted stack (which is rectangular one). The old or earlier kiln stack is not in operation during our monitoring time no gas emitted from it but attached with new kiln exhaust stack and separated by means of a damper. The cooler stack is also diverted to setting chamber of new system. This is for favour of kind information. Yours faithfully Sd/- Illegible (PRALAYDAS) CHEMIST 16. According to the Pollution Control Board and also the Petitioner in the PIL though the new stack has been installed, the ICL has also kept the old stack in the operation, which emits pollutants into air beyond the limits prescribed by the Pollution Control Board, which, however, has been denied by the ICL. According to the ICL, the old stack has to be used for operational purpose and when there was power failure and also for the period required for activating the alternative power supply system. The ICL, however, denied emission of pollutants into air beyond the prescribed limits even during the period when the old stack is being used. As noticed above, the certificate issued by the Chemists dated 01.08.2005 speaks about non-emission of particulates beyond the prescribed limit during the stack monitoring conducted on the new kiln exhaust stack and at the time of such monitoring the old and the earlier kiln stack was not in operation. Such certificate, therefore, cannot be the basis to support the contention of the ICL that there is no emission of pollutants into air beyond the limit prescribed by the Pollution Control Board while the old stack is in use. Such certificate, therefore, cannot be the basis to support the contention of the ICL that there is no emission of pollutants into air beyond the limit prescribed by the Pollution Control Board while the old stack is in use. The Pollution Control Board also without there being any stack monitoring conducted by it while such old stack is in operation and without recording how and in what manner the emission of pollutants into air by such industrial unit exceeds the prescribed limits, cannot issue any direction as has been issued by the Chairman of the Pollution Control Board on 07.10.2005, as, such order does not contain and such finding. The report of the Circle Officer, filed by the Additional Deputy Commissioner along with the affidavit filed in the taken up matter, with the finding that the industrial unit belonging to ICL has caused air pollution also cannot be accepted on the ground that the Circle Officer is not the competent technical person to say so and such report also does not contain any particulars to show that the emission of pollutants is beyond the prescribed limits. The order passed by the Chairman, Pollution Control Board cannot, therefore, be the basis for granting the prayer made in the PIL as well as in the taken up matter. 17. Though it has been held that the order dated 07.10.2005 passed by the Chairman, Pollution Control Board, cannot be the basis for granting the relief prayed for in the present petitions, the writ petitions cannot be dismissed on that count as there is still allegation of violation of the provisions of the Air Act alleging that the industrial unit belonging to ICL is emitting pollutant into air beyond the limit prescribed by the Pollution Control Board. The question relating to the emission of pollutants into air is highly disputed in the present case, as observed above. This Court, therefore, is not in a position to arrive at any decision on such disputed question of fact, which is required to be ascertained by the Pollution Control Board, it being the authority under the Air Act. The question relating to the emission of pollutants into air is highly disputed in the present case, as observed above. This Court, therefore, is not in a position to arrive at any decision on such disputed question of fact, which is required to be ascertained by the Pollution Control Board, it being the authority under the Air Act. The Pollution Control Board being the authority, and having expertise, is, therefore, directed to cause necessary inspections and monitoring with due notice to all concerned, within two months from today and take such steps as required under the provisions of the Air Act to ascertain the level of emission by the industrial unit in question, both when the old stack as well as the new stack or both of them, are in operation, in accordance with the provision of the said Act and to take necessary action under the law, if it is found that the emission level in respect of the said industry is beyond the permissible limit fixed by the Pollution Control Board under the Act. Such inspection shall also be carried out by the Pollution Control Board from time to time as required under the law. It is needless to say that in the event the ICL has found to have violated any environmental laws, it is open to the Pollution Control Board to take appropriate action in accordance with law. 18. The question whether the Chairman has the authority to pass the order dated 07.10.2005 and whether such order was passed without hearing the ICL and without giving them any opportunity and even without furnishing the copies of the representations filed and, therefore, is illegal, need not be gone into in these proceedings as we have already held that the order dated 07.10.2005 passed by the Chairman, Pollution Control Board cannot be the basis for granting relief. We have, therefore, not discussed the judgment of the Karnataka High Court in M/S Suma Traders (supra) relating to the power of the Chairman, Pollution Control Board to issue any direction. Our said observation has in fact renders the appeal filed by the ICL before the appellate authority against the order dated 07.10.2005 passed by the Chairman, Pollution Control Board, infructuous. Our said observation has in fact renders the appeal filed by the ICL before the appellate authority against the order dated 07.10.2005 passed by the Chairman, Pollution Control Board, infructuous. Therefore, the question as to whether the representation filed by the ICL before the Minister can be treated as an appeal under Section 31 of the Air Act, has also not been gone into. However, in view of the submissions made by the learned Additional Advocate General, we direct the State Government to constitute the appellate authority under Section 31 of the Air Act in terms of the observations of the Apex Court made in A.P. Pollution Control Board case, within a period of four months from today. 19. The question as to whether the consent to operate was accorded to the ICL for a fixed period of time, i.e. for one year or for an unlimited period of time, could not be decided in the present case as neither the Pollution Control Board nor the ICL has produced the copy of such order of consent to operate accorded under Section 21 of the Air Act. The Pollution Control Board, therefore, is directed to verify the records and take appropriate action, after giving opportunity to the ICL. in the matter of consent to operate as required to be obtained under Section 21 of the Air Act. 20. For the reasons recorded above, the present writ petitions cannot be held to be an abuse of the process of the Court or frivolous or vexatious, therefore, there is no question of dismissing the same by following the decision of the Apex Court in K.K. Modi's case (supra). 21. Both the PIL No. 37/2006 as well as W.P. (C) (Take Up) No. 3457/2006 are accordingly disposed of in terms of the aforesaid directions. No cost.