Amendments to the Air (Prevention and Control of Pollution) Act 1981 made through the Jan Vishwas (Amendment of Provisions) Act, 2023
By Dr. Yashpal Singh
Chairman, The Wealthy Waste School India
The Jan Vishwas (Amendment of Provisions) Act, 2023 was promulgated to amend certain enactments with the objective of decriminalisation and rationalising offences. In Terms of enactments related to environment and pollution control, it has amended certain provisions of the E.P. Act. 1986 and the Air Act 1981 (No. 23 of 2023 CG-DL-E-12082023-248047 dated 11-08-23). The Ministry of Environment, Forests and Climate Change has notified (GSR 749E dated 17-10-2023) 1st April, 2024 as the date on which the amendments in the E.P. Act 1986 will come into force. The amendments with regards to the Air Act will also come into force from 01-04-2024 (GSR 757E dated 18-10-2023).
Significantly the Act provides that the fines and penalties prescribed under the different enactments included in this Act (Jan Vishwas Act of 2023) shall be increased by 10% of the minimum amount every three years from the commencement of the (Jan Vishwas) Act.
Most interestingly, the savings clause to the Jan Vishwas Act (Section 4) provides that the amendment or repeal of any enactment by this Act (Jan Vishwas Act 2023), shall not affect any other enactment in which the amended or repealed enactment has been applied, incorporated or referred to. This may also need to be better understood along with other provision of section 4 of the Jan Vishwas Act 2023. In an earlier case and under identical provisions, the Honourable Supreme Court in the matter of Criminal Appeal No. 185 of 1957 has held that the provision as above (Not affecting any other enactment) allow the amended/repealed portions of the parent acts to be in force even after being repealed or amended. (The court has held that provisions of section 6-1-A of the Wireless Telegraph Amendment Act 1949 will hold good even if the provisions have been repealed by the repealing and Amending Act 1952, on an offence committed in 1953 much after the repeal). This is important and may need clarification.
In terms of amendments, the following changes have been made to the Air (Prevention and Control of Pollution) Act 1981.
A. Consent management, conforming emissions, exemption to certain industrial plants, consent guidelines and penalties.
- Section 21 of the Air Act which related to the Restriction on use of Certain industrial plants had provided under subsection 1 of Section 21 that ‘no person shall without the previous consent of the State Board, Establish or operate any industrial in an air pollution control area.” This subsection (1) of Section 21 has been substituted to now read as:
“(1) No person shall establish or operate any industrial plant in an air pollution control area unless the previous consent of the State Board has been obtained in pursuance of an application made by such person in accordance with the provisions of this section. Provided that the Central Government may in consultation with the Central Pollution Control Board, by notification in the Official Gazette, exempt certain categories of industrial plants from the application of the provisions of this sub-section.”.
The amendment provides that the consent is mandatory and the consent has to be obtained in pursuance of an application. It also provides that the Central Government can exempt certain categories of industrial plants from the provisions of consent.
- The Jan Vishwas Act of 2023 also introduces an additional section 21(A) to the Air (Prevention and Control of Pollution) Act 1981 as follows.
“21A. Power to issue guidelines.
(1) Notwithstanding anything contained in this Act, the Central Government in consultation with the Central Board, may, by notification in the Official Gazette, issue guidelines on the matters relating to the grant, refusal or cancellation of consent by any State Board to establish or operate any industrial plant in an air pollution control area, including the mechanism for time bound disposal of the application made under section 21 or validity period of such consent.
(2) Every State Board, in discharge of its functions for the purposes of grant, refusal or cancellation of consent under section 21 shall act in accordance with the guidelines issued under sub-section (1).”.
The amendment now authorises the Central Government to issue guidelines on matters related to grant or refusal of consent including the issue of time bound disposal of consent which the State Boards will have to follow.
Since only section 21 subsection 1 has been substituted and the other subsections 2 to 6 which also deal with the matter of grant or refusal of consent retained it has to be under stood how the new guidelines would incorporate the provisions of subsection 2 to 6 (Fees, prescribed form, particulars required, nature of inquiry, maximum time for disposal of applications, cancellation of consent and opportunity, conditions of consent, restriction on alternations or replacement without previous consent, change in conditions, transferability of consent). It has also to be understood as to how the new guidelines would integrate with the consent rules framed under section 54 of the Air act by various state Governments.
B. Offences and Penalties under the Air Act 1981
Sections 37 to 41 of the Air Act 1981, which respectively dealt with provisions of offences and penalties including penalties for operating without consent or discharging emissions beyond standards or directions issued under section 31A have been substituted by a new set of sections 37 to 39. The provisions of imprisonment which were earlier an important part of sections 37 to 41 of the unamended Air Act of 1981 have been removed and instead imprisonment provided only if a person operates without the consent of the Board (Section 21) or fails to pay the penalties imposed. The quantum of penalties has been enhanced and additional penalties provided for continued contravention. Penalties can now only be determined by adjudicating officers. Whose orders can be appealed against at the Honourable NGT by paying at least 10% of the imposed penalty. For sections 37 to 41, the following sections have been substituted, namely:
C. 37 Failure to comply with provisions of section 22 or directions issued under section 31A.
(1) Whoever contravenes or does not comply with the provisions of section 22 or directions issued under section 31A, shall, in respect of each such contravention, be liable to penalty which shall not be less than ten thousand rupees, but which may extend to fifteen lakh rupees.
(2) Where any person continues contravention under sub-section (1), he shall be liable to additional penalty of ten thousand rupees for every day during which such contravention continues.
D. 38. Penalties for certain acts.
- (1) Whoever
(a) destroys, pulls down, removes, injures or defaces any pillar, post or stake fixed in the ground or any notice or other matter put up, inscribed or placed, by or under the authority of the Board;
(b) obstructs any person acting under the orders or directions of the Board from exercising his powers and performing his functions under this Act;
(c) damages any works or property belonging to the Board;
(d) fails to furnish to the Board or any officer or other employee of the Board any information required by the Board or such officer or other employee for the purposes of this Act;
(e) fails to intimate the occurrence of the emission of air pollutants into the atmosphere in excess of the standards laid down by the State Board or the apprehension of such occurrence, to the State Board and other prescribed authorities or agencies as required under sub-section (1) of section 23;
(f) fails in giving any information which he is required to give under this Act, makes a statement which is false in any material particular.
Shall be liable to penalty which shall not be less than ten thousand rupees, but which may extend to fifteen lakh rupees.
(2) Where any person continues contravention under sub-section (1), he shall be liable to additional penalty of ten thousand rupees for every day during which such contravention continues.
E. 38A. Penalty for contravention by Government Department.
(1) Where contravention of any provision of this Act has been committed by any Department of the Central Government or the State Government, the Head of the Department shall be liable to penalty equal to one month of his basic salary:
Provided that he shall not be liable for such contravention, if he proves that the contravention was committed without his knowledge or instructions or that he exercised all due diligence to prevent such contravention.
(2) Where any contravention under sub-section (1) is attributable to any neglect on the part of, any officer, other than the Head of the Department, the officer shall be liable to penalty equal to one month of his basic salary:
Provided that he shall not be liable for the contravention, if he proves that he exercised all due diligence to avoid such contravention.
F. 39 Penalties for contravention of certain provisions of this Act.
If any person contravenes any of the provisions of this Act or any order or direction issued thereunder, for which no penalty has been provided for in this Act, shall be liable to penalty which shall not be less than ten thousand rupees, but which may extend to fifteen lakh rupees, and where such contravention continues, he shall be liable to additional penalty which may extend to ten thousand rupees for every day during which such contravention continues.
G. 39A Adjudicating officer.
(1) The Central Government, for the purposes of determining the penalties under sections 37, 38, 38A and section 39, shall appoint an officer not below the rank of Joint Secretary to the Government of India or a Secretary to the State Government to be the adjudicating officer, to hold an inquiry and to impose the penalty in the manner, as may be prescribed:
Provided that the Central Government may appoint as many adjudicating officers as may be required.
(2) The adjudicating officer may summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document, which in the opinion of the adjudicating officer, may be useful for or relevant to the subject-matter of the inquiry and if, on such inquiry, he is satisfied that the person concerned has contravened the provisions of this Act, he may determine such penalty as he thinks fit under the provisions of sections 37, 38, 38A or 39, as the case may be:
Provided that no such penalty shall be imposed without giving the person concerned a reasonable opportunity of being heard.
(3) The amount of penalty imposed under the provisions of sections 37, 38, 38A and 39, shall be in addition to the liability to pay relief or compensation under section 15 read with section 17 of the National Green Tribunal Act, 2010 (19 of 2010).
H 39B. Appeal.
(1) Whoever aggrieved by the order passed by the adjudicating officer under sections 37, 38, 38A or 39, may prefer an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010 (19 of 2010).
(2) Every appeal under sub-section
(1) shall be filed within sixty days from the date on which the copy of the order made by the adjudicating officer is received by the aggrieved person.
(3) The Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such order as it thinks fit, confirming, modifying or setting aside the order appealed against.
(4) Where an appeal is preferred against any order of the adjudicating officer under sub-section (1), it shall not be entertained by the Tribunal unless the person has deposited with the Tribunal ten per cent. of the amount of the penalty imposed by the adjudicating officer.
I. Penalty amount to be credited to Environmental Protection Fund.
Where an adjudicating officer imposes penalty or additional penalty, as the case may be, under sections 37, 38, 38A or 39, the amount of such penalty shall be credited to the Environmental Protection Fund established under section 16 of the Environment (Protection) Act, 1986 (29 of 1986).
J. Offences for failure to comply with provisions of section 21 and for failure to pay penalty.
- Whoever fails to comply with the provisions of section 21, shall, in respect of each such failure, be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine, and in case the failure continues, with an additional fine which may extend to fifty thousand rupees for every day during which such failure continues after the conviction for the first such failure.
- If the failure 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 shall not be less than two years but which may extend to seven years and with fine.
- Where any person fails to pay the penalty or the additional penalty, as the case may be, imposed under the provisions of this Act within ninety days of such imposition, he shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to twice the amount of the penalty or additional penalty so imposed or with both.
- Where any offence under sub-section (1) or sub-section (2) or sub-section (3) has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of such offence and he shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in sub-section (1) or sub-section (2) or sub-section (3), if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
- Notwithstanding anything contained in sub-section (4), where an offence has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation. —For the purposes of this section, —
(a) “company” includes body corporate, firm, trust, society and any other association of individuals;
(b) “director” includes director of the company, partner of the firm, members of the society or trust or member of any association of individuals, as the case may be.’
J. Amendments to Section 43 of the Air Act 1981
Section 43 dealt with cognizance of offences and the amendment in addition to earlier provisions enables the adjudicating officers also to file complaints in court. The earlier provisions empowered the Board or any Officer empowered by the Board to file a complaint. The amendment provides as follows:
“In section 43, in sub-section (1), after clause (a), the following clause shall be inserted, namely:
(aa) the adjudicating officer or any officer authorised by him in this behalf; or”.
L. Amendments to Section 53 of the Air Act 1981
Section 53 of the Air Act 1981 provides powers to Central Government to frame rules. The following provisions have been inserted to provide for the manner in which the adjudicating officer will conduct inquiries and impose penalties. The amendment provides as follows.
“In section 53, in sub-section (1), after clause (g), the following clause shall be inserted, namely:
“(h) the manner of holding inquiry and imposing penalties by the adjudicating officer under sub-section (1) of section 39A.”.
Also See:
- Amendments to the Environment Protection Act of 1986 enforced through the Jan Vishwas (Amendment of Provisions) Act, 2023
- Salient features of The Water (Prevention and Control of Pollution) Amendment Act, 2024
- The Water (Prevention and Control of Pollution) Act, 1974
- Need for guidelines on appropriate Appellate Authorities in case a combined order is issued for closure and other directions under the Water and Air Acts
- The Air (Prevention and Control of Pollution) Act 1981