Fines and Penalties. Comments on draft notification no. G.S.R. 285(E) dated 22/04/2021. Utilisation of fly ash.
By Dr. Yashpal Singh, Chairman, The Wealthy Waste School India
Also See MoEF & CC Publishes Draft Notification on 100% Utilization of Ash by Thermal Power Plants. Fixes Responsibilities and Proposes Fines And Fly Ash Utilisation In India
The MoEF & CC has issued a draft notification no. G.S.R. 285(E) dated 22/04/2021 on the utilization of fly ash and has called for suggestions withing 60 days. The following suggestions have been sent to the MoEF&CC for their kind consideration.
The draft notification has been issued in exercise of powers conferred by sub-section (1) and clause (v) of sub-section (2) of section (3) of the E.P. Act 1986. The scope of the amendment therefore appears limited to these provisions.
Sub-section (1) of section (3) of the E.P. Act, 1986 makes a specific reference to the fact that the powers to be exercised by the Central Government (to take measures under this sub-section) shall be subject to the provisions of the E.P. Act 1986 and such measures may include all or any of the measures prescribed in Sub-section (2) of section-3. In choosing to issue this notification under sub-section 3(2)v, the scope of the amendment appears to be limited to “restriction of areas in which any industries, operations or processes, or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards” and “subject to the provisions of the E.P. Act 1986.”
The proposed amendment introduces Fines for non-compliance at para ‘C’ of the notification and also quantifies these fines. This provision does not appear to be in conformity with the provisions of the E.P. Act 1986.
Penalties for contravention of the provisions of the E.P. Act 1986 are provided under section 15 of the E.P. Act and mention that “ (1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention. (2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.”
The Act is therefore very clear in terms of the penal provisions specially the amount of fine that can be imposed. The provisions in the draft notification are different from these provisions of the Act and therefore the provisions for fines for non compliance may need to be readdressed to and made to conform to the provisions of the Act.
Further, the Central Government does not have powers to impose fines. They are to be imposed only after cognizance of the offence is taken by a competent court. Similarly, the Pollution Control Boards/Committees are not authorized to levy and collect fines under the Air and Water Acts. Only Courts can impose such fines and Penalties under penal provisions in the Water Act and the Air Act.
The draft notification also speaks of fines and prosecution but does not explicitly provide for the application of section 5 of the E.P. Act or the powers of the Boards to issue directions including those for closure etc. A mention of these provisions in the final notification or mentioning that default would be liable to action under provisions of the E.P. Act 1986 would appear more clear.
In view of what has been stated above, the following suggestions have been made:
- The Penal provisions and provisions for fines could be reexamined and made to conform to provisions of the E.P. Act 1986.
- The powers of the Central Government to impose fines and the delegation of these powers to the SPCB/CPCB/PCC under the E.P. Act may need to be examined while drawing up the procedures.
- The powers to issue directions could be also included as a punitive action, apart from prosecution as mentioned in the draft.
- The text could include that default will be made liable to action under provisions of the E.P. Act 1986.