IN ITS APPELLATE CIVIL JURISDICTION
AND
IN ITS JURISDICTION UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA
WRIT PETITION NO. 1203 of 1985
DISTRICT : PUNE
1)Meherbai Karl Khandalawala
2)Padma Bhushan General Gopal Gurunath Bewoor
3)Brig. Fatehsinh Pandurangrao Shinde
4)Emmanuel Sumitra Modak
5)Minakshi Devi Sisodia
6)Brig. Jayasingrao Shivajirao Bhonsale
7)Pranay Patwardhan
8)Sundanda Das
9)Naushad Forbes
10)Mukesh Narang
11)Kaushalya Beliram Khera
12)Ranjit Dattatraya Guru
13)Ratan Chand Panalal Jain
14)Ashok Gour Broome
15)Homi Byramji Governor
16)Lilawati Devi Patwardhan
17)Aimes Behram Wadia
18)Minoo Gustafq Nagarwal
19)Soli Captain
20)Naraindas Jagnath Rathi
21)Narendra Singh
22)Mira Jagtiani
… … … … … … … … ..Petitioners
Versus
1)The Competent Authority under the Urban Land (Ceiling & Regulation) Act, 1976
2)Municipal Corporation of the City of Pune
3)Municipal Commissioner
4)The Commissioner, Pune Dn.
5)The Collector & District Magistrate
6)State of Maharashtra
7)The Sonawala Co. Pvt. Ltd.
8)J.M.C. & Maghani Builders
9)Jamuna Vihar Co-Op. Housing Soc. Ltd.
10)Sadhu Vaswani Missions
… … … … … … … … Respondents
Mr. F. H. A. Taleyarkhan with Mr. N. H. Seerwai and P. K. B. Purohit, Advocates for the Petitioners. Mr. A. S. Bobade, Advocate General with Mr. V. A. Gangal Asstt. Govt. Pleader for Respondents Nos. 1, 4, 5 and 6.
Mr. A.V. Sawant with Mr. R.N. Bhorde for Respondents Nos. 2 and 3.
Mr. Ashok Desai for Respondent No.7.
Mr.C.J. Sawant with Ms.Rajani Aiyer for Respondents Nos. 8 and 9.
Mr. H. H. Gurushahani with Mr. H.G. Advani for Respondent No.10.
CORAM : C.S. DHARMADHIKARI & S.N. VARIAVA, JJ.
11th March, 1988.
ORAL JUDGEMENT (Per Variava J.)
By this Petition, the Petitioners are challenging the Scheme sanctioned under Section 21(1) of the Urban Land (Ceiling & Regulation) Act 1976 and the action of Respondents Nos. 1 to 6 in granting permission to construct on plots Nos. 7, 8, 9, 15, 16, 22, 28, 50, 51, 84, 85 and 115 in Koregaon Park Area, Pune on the grounds set out hereinafter.
The facts briefly stated are that the Petitioners are all residents and Owners of house properties situated in Koregaon Park, Pune. The Petitioners are also active members of an Association known as Koregaon Park Resident’s Association.
It would seem that in or about 1920, Koregaon Park Area was formed as a model colony with an area of approximately 208.7 hectares divided into 122 plots. The Plots were given out to various parties on leases in perpetuity. All the leases are identical. Clauses 6 and 8 of the Lease Deeds provide as follows :-
“6. The Lessee shall after the said land has been included within the limits of the suburban Municipality of Poona comply with the Municipal rules and by-laws for the time being in force in this behalf;
“8. The lessee shall not at any time erect or alter any building erected upon the said land otherwise than in accordance with the plan thereof submitted to and approved by the Collector of Poona.”
The Collector of Pune had also framed certain Rules entitled “BUILDING RULES FRAMED BY THE COLLECTOR OF PUNE FOR KOREGAON PARK.” The relevant rules are as follows :-
“3. Only one main building together with such outhouse as are reasonably required for the bona fide use and enjoyment by its occupants and their domestic servants shall be permitted to be erected in any building plot. Provided that this restriction shall not prevent the erection of two or more buildings on the same plot, if the plot admeasures at least twice or thrice as the case may be (according to the number of buildings) the minimum size required. Provided also that the same open space shall be required around each main buildings as if each of these were in a separate building plot.”
“5. Every building shall be set back at least 20 ft. from the boundary of any road 40ft. or more in width and 15 ft. from the other roads as shown in the layout. Provided that in the case of Highways, Provincial or District Roads the set back of buildings from the boundary of the road shall be prescribed in C.R.R.D. No. 10204/24 VIII dated 27th June, 1945, viz. 50 ft. in the case of Highways, Provincial and Major District Roads, 30 ft. in the case of District Roads and 20 ft. in the case of village roads.”
“9. Not more than one–third of the total area of any building plot shall be built upon………….”
No building shall contain more than two storeys including the ground floor.
If flats are constructed there shall be not more than two self-contained flats on each floor, each flat being occupied by one family only.
No addition to no alterations in a building shall be carried out without the previous written permission of the Collector.
In the case of land or buildings situated within the limits of the Municipality or any other local authority, the rules and bye-laws of the Municipality or local Authority in that behalf shall apply in addition to regulations prescribed above.
The permission shall be liable to be revoked on breach of any of the conditions.
No buildings shall be used for other than the residential purposes.”
By a notification published on 15th February, 1950, Koregaon Park area was incorporated into the limits of Pune Municipal Corporation. On 15th August 1966 a final development plan for Pune came into effect. In 1981 a draft development plan for Pune was prepared and published under Section 26 of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as “MRTP Act” ). Against this draft development plan, objections were filed by various parties including environmental groups. One of the objections taken was that the development rules were not in consonance with the building rules applicable to Koregaon Park. On 5th January, 1987 the final development control plan and rules for Pune were sanctioned by the State Government with effect from 5th February, 1987. In this final plan, the building rules framed by the Collector of Pune for Koregaon Park have been bodily incorporated as Appendix ‘S’.
In the meantime on 18th May, 1983 Commencement Certificate had been granted to Respondents No.10 to construct buildings on Plots Nos. 7, 8 and 9. On 21st June 1984, the 1st Respondent sanctioned a Scheme under Section 21 (1) of the Union Land (Ceiling and Regulation) Act, 1976 in favour of Respondent No.7 and Pursuant thereto on 10th January 1985 a Commencement Certificate has been sanctioned by the 2nd Respondent, permitting Respondent No.7 to construct multistoreyed buildings on Plot No.28. The 2nd Respondent has also on 4th January 1985 granted a Commencement Certificate to Respondent Nos. 8 and 9 to construct on Plots Nos. 50 and 51. The 2nd Respondent has, it would seem, also granted Commencement Certificate to owners of Plots Nos. 15, 16, 84, 85 and 114. The 2nd Respondent whilst granting Commencement Certificate has in all the above mentioned cases sanctioned an FSI of 1.
The Petitioners thereafter filed this Petition on the 25th March, 1985. As a result of the Interim orders obtained by the Petitioners and served on all the Owners of Plots. i.e. Plots Nos. 15, 16, 28, 50, 51, 84, 85 and 114 the Owners could not carry out any work and in fact no work had been started. However, before any Interim Orders could be obtained. Respondent No.10 had already constructed the basement ground and two upper floors. Similarly, Owner of Plot No.22 had already constructed one building. Thereafter, Respondent Nos. 7 to 10 applied to be and were made parties to the Petition. The Owners of other Plots have not applied and have not appeared before this court, in spite of the Interim Orders of this court.
Counsel for Respondent No.10 stated that Respondent No.10 shall restrict the construction of the staff quarters to ground and three upper floors and that subject to obtaining permission from the Pune Municipal Corporation, the entrance of the hospital on Plots Nos. 7, 8 and 9 will be from Koregaon Park Road and the exists from the first lane of Koregaon Park. In view of this statement, the Petitioners applied for discharge of Rule as against Respondent No.10. In our view, keeping in mind the fact that Respondent No.10 was constructing a hospital and keeping in mind the charitable nature of Respondent No.10 mission and also keeping in mind that by that time Rule was sought and an injunction obtained. Respondent No.10 had in fact substantially constructed and had also placed orders for hospital equipments and made various other commitments, were feel it is in the interest of public and absolutely just and equitable that the statement of Respondent No.10 accepted and Rule as against Respondent No.10 be discharged.
The arguments of Mr. Desai on behalf of Respondent No. 7 have been adopted by Mr. Sawant on behalf of Respondent No.8 and Miss Iyer on behalf of Respondent No.9.
Mr. Desai has argued that the Petitioners have no locus standi and are not entitled to maintain this Petition. He submits that the Petitioners are neither flat purchasers nor do they have any contracts or agreements with the Respondents Mr. Desai has argued that at the highest all that could be said was that the Respondents were in breach of the conditions of their lease. He submits that this is a matter of contract and that a violation can only give a right of forfeiture under clauses 9 & 10. He therefore submits that a third party cannot enforce the implementation of the contract and that in any event the terms of the contract cannot be enforced in a writ and that for that reason the Petition must be dismissed. It is to be seen that the Petitioners are all residents of Koregaon Park area and that this Petition has been filed as a public interest litigation. Further the Petitioners have averred in the Petition that in Pune there is an acute shortage of water supply and that even the sewerage treatment capacity is totally in adequate, resulting in a very high proportion of sewerage water being dumped into the river. The Petitioners have pointed out that the Standing Committee of Respondent No.2 have accorded sanction for drafting a Rs. 49.85 crores plan for laying down underground drainage lines, out all sewers, pumping stations and water treatment plans. The Petitioners have averred that the City of Pune and Koregaon Park area not geared for construction activities and/or development activities until the entire infrastructure required for hygienic living is provided. The Petitioners aver that they are there are, likely to be affected by the proposed constructions. The fact that the basic amenities are already in short supply is not denied or disputed by anybody. In fact in the commencement certificate granted, conditions 10 and 16 provide as under : -
The Society will have to make its own water supply arrangements and no complaints in this respect will be entertained.
Corporation is not in a position to provide amenities especially that of water to this area. In view of these circumstances the Promoter/Chairman must appraise the plot holders/members of this fact.
Further by this Petition the Petitioners are not seeking to enforce any terms of the lease between the Respondents Nos. 7, 8 and 9 on the one hand and Respondent No.5 on the other, but are impugning the acts of statutory authorities in granting permission for development contrary to the law in force. The Petitioners therefore cannot be said to be mere way-farers or busy body who have no interest in the cause of action. Under these circumstances we hold that the Petitioners have a locus and can maintain this Petition.
The Petitioners challenge the commencement certificate granted by the Pune Municipal Corporation and the proposed development on the ground that the same are violative of and contrary to the Collector’s Rules which were at the relevant time in force in Koregaon Park. It is the contention of the Petitioners that the permission as granted by the Pune Municipal Corporation is for an FSI of 1 and that even the other condition regarding open spaces and there being only one floor have not been complied with. The fact that the development plans as sanctioned do not comply with the Collector’s Rules is not denied.
Mr. Desai on behalf of Respondent No. 7 has submitted
(i) that the Collector’s Rules do not have any statutory force and cannot impose any conditions as they are not in the nature of law;
(ii) that the Collector’s Rules were superseded;
and
(iii) that in any event the commencement certificate has been granted keeping in mind the draft plan for Pune Published on 18th September, 1982.
On this first submission Mr. Desai has argued that it has not been shown by the Petitioners as to when and how these Collector’s Rules received any statutory force. It is submitted that the Rules disclosed by the Petitioners must have been framed some time after 1945 in as much as in Rule 5 of the Collector’s Rules there is a reference to an order of June 1945. It is submitted that this internal evidence itself shows that these Rules were not in force at an earlier day and that they have no statutory force. Mr. Desai had, in this behalf, drawn our attention to the boundaries of Koregaon Park as given in the Collector’s Rules and had submitted that this included the area where a line of multistoreyed buildings, including the Blue Diamond Hotel, are situated. He submitted that there fore it was clear that these rules were not applicable at all as otherwise those buildings could not have been constructed.
In this behalf it is pertinent to note that in the affidavit in reply dated 3rd November 1987 filed on behalf of the 6th Respondent it is admitted that building regulations in Koregaon Park area were the Collector’s Rules. The learned Advocate General stated that these Rules were framed under section 37 of the then Bombay Land Revenue Code, 1879. Respondent No.2 in its affidavit in reply dated 17th December 1985 also avers that with effect from 15th February, 1950, the Collector’s Rules were not applicable. Thus Respondent No.2 does not dispute that till 15th February, 1950, the Collector’s Rules were in force. Further Respondent no.7 in his affidavit in reply dated 2nd May 1985 sub-paragraph (j) of paragraph 16 thereof has claimed that the building rules as framed by the Collector as superceded by the draft Development control rules which were submitted to the Government. Thus, in the affidavit in fact Respondent no.7 admits the Collector’s Rules have the force of law. As regards the line of multistoreyed buildings, including Blue Diamond Hotel the Petitioners have denied that they form part of Koregaon Park. The Petitioners submit that the numbering of the plots in Koregaon Park to which the Collector’s Rules apply starts from behind the line of building referred to above. In our opinion, we are not required to decide whether this line of buildings falls within Koregaon Park. Even presuming that they do, in case the rules are applicable and have statutory force, it would mean that these buildings are constructed in violation of the rules. This argument therefore does not help the Respondent.
In our view it is not necessary for a law in force to have any nomenclature or to be gazetted. All the parties have submitted that these rules were in existence and had force of law (at least till 15th February, 1950). These rules, have in fact been printed and published even by Respondent No.2 in all its publications. Even in the Pune Building Regulations, Regulation 227 provides that in respect of various resident all colonies special building regulations were made and that those regulations continue to be in force, in respect of construction in these colonies. It is admitted by Mr. Sawant on behalf of Respondent No.2. that apart from the Collector’s Rules, in respect of Koregaon Park there were no other special building regulations. Mr. Sawant also submitted that the reference to special building regulations in Regulation 227 is to the Collector’s rules. Under these circumstances it will have to be held that the Collector’s Rules, at the relevant time, had a statutory force.
The next submission of Mr. Gangal and Mr. Desai was that on or about the 15th February, 1950 when Koregaon Park area was included within the limits of Pune Municipal Corporation, the Collector’s Rules were superceded and /or repealed. In this behalf reliance was placed upon Rule 32 and Clause 6 of the lease and it was argued that now the bye-laws and rules of Respondent No.2 applied in addition to the Collector’s Rules. Mr. Desai has submitted that there was a clear conflict between the bye-law and rules of Respondent No.2 and the Collector’s Rules. Mr. Desai relying upon the authorities in the case of Municipal Council Palai V. T .J. Joseph reported in AIR 1963 S.C. Pg. 1561 and in the case of Sanjeevayya V. Election tribunal, A. P. reported in AIR 1967 S.C. Pg. 1211 argued that on the doctrine of implied repeal the Collector’s Rules being prior rules should be deemed to be repealed.
The authorities cited by Mr. Desai also lay down the well established principles that there is a presumption against repeal by implication. This is on the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject and the failure to add a repealing clause indicates that the intent was not to repeal existing legislation where the provisions of a special statute as a wholly repugnant to the general statute, it would be possible to infer that the special statute was repealed by the general enactment. A general statute applies to all persons and localities within its jurisdiction and a scope as distinguished from a special one which in its operation is confined to a particular locality. Therefore when it is doubtful whether the special statute was intended to be repealed by the general statute the court should try to give effect to both the enactments.
Bearing the above mentioned principles in mind, it will have to be considered whether the Collector’s Rules and Building Rules and Bye-laws of Respondent No.2 cannot both be given effect to the Building Rules and Bye-laws of Respondent No.2 are for the whole of Pune. Koregaon Park area is a specifically maintained residential area, free of heavy traffic with a large number of old and beautiful buildings, all lanes are wooded with Citrea and other trees like Gulmohar, Neem, Mango. The area has thickly planted avenue. The entire area has the character of park. Under the circumstances it is but natural that there would be special rules regulating building activities in the area. We do not see any conflict. The building bye-laws and rules of Respondent No.2 apply to rest of Pune and for Koregaon Park and other special residential area special regulations prevails.
Mr. Desai has further submitted that in any event on the 18th September, 1982 the revised draft plans for Pune were published under the Maharashtra Regional & Town Planning Act,1966. It was submitted that these plans incorporated the building Bye-laws of the Pune Municipal Corporation and do not contain any provisions for separate rules for Koregaon Park area. Reliance was placed on Bye-laws 1.2 and 1.3 which read as under :-
1.2 These bye-laws shall apply to building activity and development work in areas under the jurisdiction of Pune Municipal Corporation, Pune.
1.3 These bye-laws shall supersede all Development Control Rules and bye-laws framed and sanctioned under the Maharashtra Regional and Town Planning Act,1966, the Bombay Provincial Municipal Corporation Act, 1949, except regulation in the Town Planning Scheme which shall prevail until the schemes are varied.”
However it must be seen that these bye-laws are merely by way of proposals and that there were not confirmed by Respondent No.6 under Section 461 nor published under Section 462 of the Bombay Provincial Municipal Corporation Act, 1949. It was also submitted by the Respondents that whilst sanctioning the plans, under Section 46 of the Maharashtra Regional & Town Planning Act, 1966 regard had to be kept of the draft plan as published. It was submitted that, as under the draft plan and the FSI had been declared to be 1, all the building plans had been validly sanctioned. Reliance was placed by the Respondents upon the unreported judgement of a Divisional bench of this Court in the case of Life Insurance Corporation of India Vs. Municipal Corporation of Gr. Bombay (Decided on 6th March 1984) wherein it has been observed that under Section 46 of the Act, the draft plan must be looked at. In this behalf reliance was also placed on two other judgements of this Court, in the cases of Saghital Nagesh Rao & Ors. Vs. State of Maharashtra (Unreported) (decided on 27th April, 1984 ) and Digambar Sakharam Tambolkar Vs. Pune Municipal Corporation reported in 1987 Mah. L. J. Pg. 419.
What this argument overlooks is that whilst it is correct that the draft plan should be kept in mind it cannot be argued that other relevant factors must be ignored (as it is ought to be submitted) The correct approach should be the achievement of the objectives. It must not be forgotten at this stage that it was still a draft plan on which objections had in fact been submitted amongst others by the environmentalists. In the view what he we have taken that the Collector’s Rules had the statutory force, the existing building rules only permitted of FSI of . In view of the objections taken the possibility existed of FSI being reduced. In fact in final plan as sanctioned, the Collector’s Rules have been incorporated. The furtherance of the objectives would, therefore, require keeping in mind not just the draft development plan but also the existing rules and bye-laws. Thus even on this count sanction could not have been granted for development to the extent of FSI 1. To hold otherwise would lead to a situation where development would take place and the authorities would be presented with a fact accompli strong reliance was placed upon the unreported judgement of our court in the case of Shashilal Nagesh Rao Vs. State of Maharashtra (Supra). In our view this case does not assist the Respondents. In this case the plans of the 5th Respondent had been rejected by the Bombay Municipal Corporation on the ground that the development plan was under review. The Government of Maharashtra under its powers under Section 47 of the Maharashtra Regional & Town Planning Act held that under the sanctioned plans, the property was marked as residential and therefore merely on the ground that the plan was under review the Municipal Corporation was not justified in rejecting the plan. Certain citizens filed a Writ Petition in this Court against this decision of the Government and the short question for consideration before this court was whether in view of the fact the plan was under review a building plan could be rejected. All that this court held on the facts of that case was that they were unable to hold that the Government had taken into account any irrelevant or extreneous considerations or that the Government had acted contrary to law or public interest. It was under those circumstances that this Court refused to interfere with the order of the Government. This decision in no way helps the Respondents nor runs contrary to the principles that factors which are to be taken into consideration are those which would further the achievement of the plan. We therefore reject the contention that under Section 46 of the Maharashtra Regional & Town Planning Act only the draft plan has to be looked at and that the existing rules should be ignored.
The Petitioners also contend that the sanctions given in favour of Respondents No. 7 to 9 are violative of the conditions of the lease in as much as the Collector’s approval to the Building plans has not been obtained. Annexure I to the Affidavit in Reply of Respondent No.2 (dated 12th December, 1985) confirms that the “No objection Certificate” from the Collector has not been obtained. The Respondents do not even aver and it has not been argued that the permission of the Collector has been obtained. Mr. Desai referred to clause (iii) of Exhibit ‘C’ to the Petition and argued that what was required was sending building plans as approved by Respondent No.2 to the Collector. Mr. Desai has therefore submitted that the Collector’s approval or sanction was not required. However, this argument overlooks the fact that under Rule 8 of the Lease Deeds as finally granted the building plans have to be approved by the Collector. When this was pointed out to Mr. Desai, be submitted that under a Notification No.EST-ULC-II/XXXV dated 22nd December, 1978. Respondent No.6 has appointed the Collector as an authorised Officer and that as a Scheme under Section 21(a) of the Urban Land (Ceiling & Regulation) Act, 1976 has been sanctioned in favour of Respondent No.7 by Respondent No.1 it must be implied that the Collector has approved the plans. We are afraid that the argument merely required to be stated to be rejected.
It was further argued by the Respondents that in any event a Scheme under Section 21 of the Urban Land Ceiling Act had been sanctioned by the Competent Authority. It is submitted that the scheme had been sanctioned in accordance with the guidelines given on 11th January, 1979, that such a scheme having been sanctioned under Section 42 of the Urban Land Ceiling Act, the provisions of the said Act, would have an overriding effect over any other law and that therefore in any event the Respondent were entitled to construct as per the scheme which had been sanctioned. This argument is available only to the 7th Respondent. No such scheme had been sanctioned in favour of Respondents Nos. 8 and 9 and other plot owners. It is correct that Section 42 of the Urban Land Ceiling Act has an over riding effect over any other provisions. However, the guidelines as prescribed provide as follows :-
“6. The Scheme submitted by the land holder should adhere to the prevailing Municipal regulations, Town Planning requirements and other statutory requirements in that area. If any land development is required as per these regulations then the scheme of the land holder should include such development.
Further even the scheme as sanctioned in favour of Respondent No.7 provides as follows:-
“Note – The number of tenements is, however, subject to the prevailing building bye-laws and as per the plans approved by the Appropriate Authorities.
Thus it is to be seen that in any event the Respondents are bound to comply with the building rules and bye-laws. In this case that would be the Collector’s Rules. The plans as sanctioned being admittedly contrary to the Collector’s Rules, Respondents No. 7, 8, 9 & other plot holders cannot be permitted to construct as per these plans. Respondents No.7, 8, 9 and other plot owners would be free to submit fresh plans which comply with the Collector’s Rules and Respondent No. 2 is free to consider those plans on the basis of the final development plans as sanctioned on 5th January, 1987.
Mr. Taleyarkhan also argued that in any case now in the final development plan as sanctioned on 5th January, 1987 the Collector’s Rules for Koregaon Park have been specifically incorporated as Appendix ‘S’ to the plan. He therefore submits that Respondent Nos. 1 to 6 must exercise their powers under Section 51 of the Maharashtra Regional Town Planning Act, 1966 and revoke the permission to construct. The Respondents on the other hand have contended that the plans were sanctioned as far back as 1982, that it was only due to an injunction of this Court that they could not construct in accordance with those plans, that it would now be inequitable to direct to Respondent No. 1 to 6 to revoke these plans merely because subsequent to the filing of the Petition, the Collector’s Rules have been incorporated in the final development plans. In the view that we have taken, i.e. that the Collector’s Rules were always applicable and had the force of law the permission granted to the Respondents to construct as per plans sanctioned would have to be revoked. On a question from Court Mr. Sawant for Respondent No. 2 has stated that powers under Section 51 will be exercised, Respondent No. 2 to exercise powers under Section 51 of the Maharashtra Regional Town Planning Act and to revoke the permission granted for development of plots Nos. 15, 16, 28, 50, 51, 84 and 114 in Koregaon Park area, Pune in accordance with law. However, in respect of plot Nos. 7, 8, 9 and 22 the work already having been completed, even under Section 51, the permission cannot be revoked.
In the view that we have taken it is not necessary for us to deal with or decide the other arguments which have been made and which are set out hereinafter.
On behalf of the Petitioners it was urged that under Section 21 of the Urban Land Ceiling Act only schemes for the weaker section of the society can be sanctioned. Accordingly to the Petitioners, the scheme which has been sanctioned in favour of the Respondents can never be said to be for the weaker section of the society. Mr. Taleyarkhan on behalf of the Petitioners drew our attention to Article 46 of the Constitution of India and to the authorities in the case of Balkrishna Shantaram Dhume Vs. Union Of India reported in 87 Bom. L. R. Pg.82 and in the case of State of Keral Vs. N. M. Thomas reported in AIR 1976 S.C. Pg. 490 and in the case of S. P. Gupta Vs. President of India reported in AIR 1982 S.C. Pg. 149, to the constitutional advisers’ note on draft Article 37, i.e. present Article 46 and to various other literatures which need not be set out herein. All the above were referred to, to emphasise that the phrase “Weaker Section” would mean those that are from the dismally depressed categories, comparable economically and educationally to Scheduled Castes and Tribes or those who live in poverty and destitution, those who are helpless victims of an exploitative Society. It has thus been argued that Respondent No. 7 is not holding the excess land for the declared purpose of housing the “Weaker Section” and that therefore the scheme as sanctioned must be set aside. Mr. Desai on the other hand has argued that Petitioners have no locus to challenge the scheme which has been granted in favour of Respondent No. 7. In this behalf he relies upon the authority in the case of K. Narayana Vs. Government of Andhra Pradesh reported in AIR 1985 A. P. Pg. 64. Mr. Desai also submits that the scheme has been sanctioned in accordance with the guidelines given on 11th January 1979 and clarified on 19th July, 1979, that the phrase “Weaker Section” has to be construed in the light of these guidelines. He submits that in the Petition those guidelines have not been challenged. Mr. Desai submits that works and phrases in one statute may have a different connotation or meaning when used in another statute. He submits that looking to the guidelines, weaker section would mean the lower middle class people who are willing to live in small flats which are reasonable priced. He submits that the whole purpose is to see that more land is used for housing purpose and to ensure that there is no profiteering. Mr. Desai submits that so far as Respondent No. 7 is concerned, the only alternative would be that the land would be declared as excess and be therefore lost to Respondent No. 7. To this last arguments Mr. Taleyarkhan points out that under Section 20 of the Urban Land Ceiling Act, Respondents could have applied for an exemption on the grounds of maintaining environmental aesthetic condition of the land or the purposes of a garden. He points out cases of other persons in Koregaon Park whose land has exempted on those grounds. Mr. Desai also assailed the inclusion of these Collector’s Rules in the final development plan and had submitted that this amounts to a major modification which could not have been carried out without the same having been again published an objections invited. He submits that if any major modification is to be carried out, then under Section 31 of the Maharashtra Regional and Town Planning Act, objections have to be invited. In this behalf reliance is placed upon an unreported judgement of our High Court in the case of Maneck Davar Vs. State of Maharashtra (decided on 9th October 1984) to the effects that modification carried out without following the procedure of Section 31 would be void and unenforceable. This argument looses much of its value in the view that we have taken, viz. that the Collector’s Rules had the force of law and were always applicable. However, as stated earlier, in the view that we have taken, it is not necessary to decide this point and we refrain from expressing any view on it.
Under the circumstances the Petitioners succeed to an extent and the Rule is made partly absolute. Rule as against Respondent No.10 in respect of plots Nos. 7, 8 and 9 in respect of plot No.22 stands discharged. There will however be an order and direction quashing and setting aside the commencement certificates dates 4th January 1985 and 10th January 1985 granted in favour of Respondent Nos. 8 and 9 and Respondent No.7 in respect of plots Nos.50, 51 and 28, as well as the commencement certificates granted in respect of plot Nos. 15, 16, 84, 85 and 114. Respondents Nos. 2 to 6, their officers, servants and agents to take steps in accordance with law and to stop construction work and to cancel and withdrawal all development permissions granted in respect of plots Nos. 15, 16, 28, 50, 51, 84, 85 and 114. It is however, clarified that Respondents Nos.7 to 8 and /or the owners of plots Nos.15, 16, 84, 85 and 114 are at liberty to submit fresh plans which would comply with Collector’s Rules as now incorporated in Appendix ‘S’ in the final development plan and that the Pune Municipal Corporation is free to consider those plans. Under the circumstances, there will, however, be no order as to costs of the Petition.
THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981
No. 14 of 1981
[29th March, 1981]
An Act to provide for the prevention, control and abatement of air pollution, for the establishment, with a view to carrying out the aforesaid purposes, of Boards, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith.
WHEREAS decisions were taken at the United Nations Conference on the Human Environment held in Stockholm in June, 1972, in which India participated, to take appropriate steps for the preservation of the natural resources of the earth which, among other things, include the preservation of the quality of air and control of air pollution;
AND WHEREAS it is considered necessary to implement the decisions aforesaid in so far as they relate to the preservation of the quality of air and control of air pollution;
BE it enacted by Parliament in the Thirty–second Year of the Republic of India as follows:—
CHAPTER I
PRELIMINARY
1. Short title, extent and commencement.
(1) This Act may be called the Air (Prevention and Control of Pollution) Act, 1981.
(2) It extends to the whole of India.
(3) It shall come into force on such datel as the Central Government may, by notification in the Official Gazette, appoint.
2. Definitions.
In this Act, unless the context otherwise requires,—
(a) “air pollutant” means any solid, liquid or gaseous substance 2[(including noise)] present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment;
(b) “air pollution” means the presence in the atmosphere of any air
(c) “approved appliances” means any equipment or gadget used for the bringing of any combustible material or for generating or consuming any fume, gas of particulate matter and approved by the State Board for the purpose of this Act;
(d) “approved fuel” means any fuel approved by the State Board for the purposes of this Act;
(e) “automobile” means any vehicle powered either by internal combustion engine or by any method of generating power to drive such vehicle by burning fuel;
(f) “Board” means the Central Board or State Board;
(g) “Central Board” means the 3[Central Board for the Prevention and Control of Water Pollution] constituted under section 3 of the Water (Prevention and Control of Pollution) Act, 1974;
(h) “chimney” includes any structure with an opening or outlet from or through which any air pollutant may be emitted,
(i) “control equipment” means any apparatus, device, equipment or system to control the quality and manner of emission of any air pollutant and includes any device used for securing the efficient operation of any industrial plant;
(j) “emission” means any solid or liquid or gaseous substance coming out of any chimney, duct or flue or any other outlet;
(k) “industrial plant” means any plant used for any industrial or trade purposes and emitting any air pollutant into the atmosphere;
(l) “member” means a member of the Central Board or a State Board, as the case may be, and includes the Chairman thereof,
4[(m) “occupier”, in relation to any factory or premises, means the person who has control over the affairs of the factory or the premises, and includes, in relation to any substance, the person in possession of the substance;]
(n) “prescribed” means prescribed by rules made under this Act by the Central Government or as the case may be, the State government;
(o) “State Board” means,—
(i) in relation to a State in which the Water (Prevention and Control of Pollution) Act, 1974, is in force and the State Government has constituted for that State a 5[State Board for the Prevention and Control of Water Pollution] under section 4 of that Act, the said State Board; and
(ii) in relation to any other State, the State Board for the Prevention and Control of Air Pollution constituted by the State Government under section 5 of this Act.
CHAPTER II
CENTRAL AND STATE BOARDS FOR THE PREVENTION AND CONTROL OF AIR POLLUTION
6[3. Central Board for the Prevention and Control of Air Pollution.
The Central Board for the Prevention and Control of Water Pollution constituted under section 3 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), shall, without prejudice to the exercise and performance of its powers and functions under this Act, exercise the powers and perform the functions of the Central Board for the Prevention and Control of Air Pollution under this Act.
7[4. State Boards for the Prevention and Control of Water Pollution to be, State Boards for the Prevention and Control of Air Pollution.
In any State in which the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), is in force and the State Government has constituted for that State a State Board for the Prevention and Control of Water Pollution under section 4 of that Act, such State Board shall be deemed to be the State Board for the Prevention and Control of air Pollution constituted under section 5 of this Act and accordingly that State Board for the Prevention and Control of Water Pollution shall, without prejudice to the exercise and performance of its powers and functions under that Act, exercise the powers and perform the functions of the State Board for the Prevention and Control of Air Pollution under this Act.]
5. Constitution of State Boards.
(1) In any State in which the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), is not in force, or that Act is in force but the State Government has not constituted a 8[State Board for the Prevention and Control of Water Pollution] under that Act, the State Government shall, with effect from such date as it may, by notification in the Official Gazette, appoint, constitute a State Board for the Prevention and Control of Air Pollution under such name as may be specified in the notification, to exercise the powers conferred on, and perform the functions assigned to, that Board under this Act.
(2) A State Board constituted under this Act shall consist of the following members, namely:—
(a) a Chairman, being a person, having a person having special knowledge or practical experience in respect of matters relating to environmental protection, to be nominated by the State Government:
Provided that the Chairman my be either whole–time or part–time as the State Government may think fit;
(b) such number of officials, not exceeding five, as the State Government may think fit, to be nominated by the State Government to represent that government;
(c) such number of persons, not exceeding five, as the State Government may think fit, to be nominated by the State Government from amongst the members of the local authorities functioning within the State;
(d) such number of non–officials, not exceeding three, as the State Government may think fit, to be nominated by the State Government to represent the interest of agriculture, fishery or industry or trade or labour or any other interest, which in the opinion of that government, ought to be represented;
(e) two persons to represent the companies or corporations owned, controlled or managed by the State Government, to be nominated by that Government;
9[(f) a full–time member–secretary having such qualifications knowledge and experience of scientific, engineering or management aspects of pollution control as may be prescribed, to be appointed by the State Governments
Provided that the State Government shall ensure that not less than two of the members are persons having special knowledge or practical experience in, respect of matters relating to the improvement of the quality of air or the prevention, control or abatement of air pollution.
(3) Every State Board constituted under this Act shall be a body corporate with the name specified by the State Government in the notification issued under sub–section (1), having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire and dispose of property and to contract, and may by the said name sue or be sued.
6. Central Board to exercise the powers and perform die functions of a State Board in the Union territories.
No State Board shall be constituted for a Union territory and in relation to a Union territory, the Central Board shall exercise the powers and perform the functions of a State Board under this Act for that Union territory
Provided that in relation to any Union territory the Central Board may delegate all or any of its powers and functions under this section to such person or body of persons as the Central Government may specify.
7. Terms and conditions of service of members.
(1) Save as otherwise provided by or under this Act, a member of a State Board constituted under this Act, other than the member–secretary, shall hold office for a term of three years from the date on which his nomination is notified in the Official Gazette:
Provided that a member shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.
(2) The terms of office of a member of a State Board constituted under this Act and nominated under clause (b) or clause (e) of sub–section (2) of section 5 shall come to an end as soon as he ceases to hold the office under the State Government as the case may be, the company or corporation owned, controlled or managed by the State Government, by virtue of which he was nominated.
(3) A member of a State Board constituted under this Act, other than the member– secretary, may at any time resign his office by writing under his hand addressed,—
(a) in the case of the Chairman, to the State Government; and
(b) in any other case, to the Chairman of the State Board, and the seat of be Chairman or such other member shall thereupon become vacant.
(4) A member of a State Board constituted under this Act, other than the member–secretary, shall be deemed to have vacated his scat, if he is absent without reason, sufficient in the opinion of the State Board, from three consecutive meetings of the State Board or where he is nominated under clause (c) of subsection (2) of section 5, he ceases to be a member of the local authority and such vacation of scat shall, in either case, take effect from such as the State Government may, by notification in the Official Gazette, specify.
(5) A casual vacancy in a State Board constituted under this Act shall be filled by a fresh nomination and the person nominated to fill the vacancy shall hold office only for the remainder of die term for which the member whose place lie takes was nominated.
(6) A member of a State Board constituted under this Act shall be eligible for re–nomination 10*****
(7) The other terms and conditions of service of the Chairman and other members (except the member–secretary) of a State Board constituted under this Act shall be such as may be prescribed.
8. Disqualifications.
(1) No person shall be a member of a State Board constituted under this
(a) is, or at any time has been, adjudged insolvent, or
(b) is of unsound mind and has been so declared by a competent court,
(c) is, or has been, convicted of an offence which, in the opinion of the State Government, involves moral turpitude, or
(d) is, or at any time has been, convicted of an offence under this Act,
(e) has directly or indirectly by himself on by any partner... any share or interest in any Finn or company carrying on the business of manufacture, sale, or hire of machinery, industrial plant, c6ntrol equipment or any other apparatus for the improvement of the quality of air or for the prevention, control or abatement of air pollution, or
(f) is a director or a secretary, manager or other salaried officer or employee of any company or firm having any contract with the Board, or with the Government constituting the Board or with a local authority in the State, or with a company or corporation owned, controlled or managed by the Government, for the carrying out of programmes for the improvement of the quality of air or for the prevention, control or abatement of air pollution, or
(g) has so abused, in the opinion Of the State Government, his position as a member, as to render his continuance on the State Board detrimental to the interest of the general public.
(2) The State Government shall, by order in writing, remove any member who is, or has become, subject to any disqualification mentioned in sub–section (1).
Provided that no order of removal shall be made by the State Government under this section unless the member concerned has been given a reasonable opportunity of showing cause against the same.
(3) Notwithstanding anything contained in sub–section ( 1) or sub–section (6) of section 7, a member who has been removed under this section shall not be eligible to continue to hold office until his successor enters upon his office, or, as the case may be, for re–nomination as a member.
9. Vacation of seats by members.
If a member of a State Board constituted under this Act becomes subject to any of the disqualifications specified in section 8, his seat shall become vacant.
10. Meetings of Board.
(1) For the purposes of this Act, a Board shall meet at least once in every three months and shall observe such rules of procedure in regard to the transaction of business at its meetings as may be prescribed:
Provided that it, in the opinion of the Chairman, any business of an urgent nature is to be transacted, he may convene a meeting of the Board at such time as he thinks fit for the aforesaid purpose.
(2) Copies of minutes of the meetings under sub–section (1) shall be forwarded to the Central Board and to the State Government concerned.
11. Constitution of committees.
(1) A Board may constitute as many committees consisting wholly of members or partly of members and partly of other persons and for such purpose or purposes as it may think fit.
(2) A committee constituted under this section shall meet at such time and at such place, and shall observe such rules of procedure in regard to the transaction of business at its meetings, as may be prescribed.
(3) The members of a committee other than the members of the Board shall be paid such fees and allowances, for attending its meetings and for attending to any other work of the Board as may be prescribed.
12. Temporary association of persons with Board for particular purposes.
(1) A Board may associate with itself in such manner, and for such purposes, as may be prescribed, any person whose assistance or advice it may desire to obtain in performing any of its functions under this Act.
(2) A person associated with the Board under sub–section (1) for any purpose shall have a right to take part in the discussions of the Board relevant to that purpose, but shall riot have a tight to vote at a meetings of the Board and shall not be a member of the Board for any other purpose.
(3) A person associated with a Board under sub–section (1) shall be entitled to receive such fees and allowances as may be prescribed.
13. Vacancy in Board not to invalidate acts or proceedings.
No act or proceeding of a Board or any committee thereof shall be called in question on the ground merely of the existence of any vacancy in or any defect in the constitution of, the Board or such committee, as the case may be.
14. Member–secretary and officers and other employees of State Boards.
(1) The terms and conditions of service of the member–secretary of a State Board constituted under this Act shall be such as may be prescribed.
11[(2) The member–secretary of a State Board, whether constituted under this Act or not, shall exercise such powers and perform such duties as may be prescribed or as may, from time to time, be delegated to him by the State Board or its Chairman.]
(3) subject to such rules as may be made by the State Government in this behalf, a State Board, whether constituted under this Act or not, may appoint such officers and other employees as it considers necessary for the efficient performance of its functions under this Act.
(4) The method of appointment, the conditions of service and the scale of pay of the officers (other than the member–secretary) and other employees of a State Board appointed under sub–section (3) shall be such as may be determined by regulations made by the State Board under this Act.
(5) Subject to such conditions as may be prescribed, a State Board constituted under this Act may from time to time appoint any qualified person to be a consultant to the Board and pay him such salary and allowances or fees, as it thinks fit.
15. Delegation of powers
A State Board may, by general or special order, delegate to t1he Chairman or the member–secretary or any other officer of the Board subject to such conditions and limitations, if any. as may be specified in the order, such of its powers and functions under this Act as It may deem necessary.
CHAPTER III
POWERS AND FUNCTIONS OF BOARDS
16. Functions of Central Board.
(1) Subject to the provisions of this Act, and without prejudice to the performance, of its functions under the Water (Prevention and Control of Pollution) Act, IL974 (6 of 1974), the main functions of the Central Board shall be to improve the quality of air and to prevent, control or abate air pollution in the country.
(2) In particular and without prejudice to the generality of the foregoing functions, the Central Board may—
(a) advise the Central Government on any matter concerning the improvement of the quality of air and the prevention, control or abatement of air pollution;
(b) plan and cause to be executed a nation–wide programme for the prevention, control or abatement of air pollution;
(c) co–ordinate the activities of the State and resolve disputes among them;
(d) provide technical assistance and guidance to the State Boards, carry out and sponsor investigations and research relating to problems of air pollution and prevention, control or abatement of air pollution;
12[(dd) perform such of the function of any State Board as may, be specified in and order made under sub–section (2) of section 18;]
(e) plan and organise the training of persons engaged or to be engaged in programmes for the prevention, control or abatement of air pollution on such terms and conditions as the Central Board may specify;
(f) organise through mass media a comprehensive programme regarding the prevention, control or abatement of air pollution;
(g) collect, compile and publish technical and statistical data relating to air pollution and the measures devised for its effective prevention, control or abatement and prepare manuals, codes or guides relating to prevention, control or abatement of air pollution;
(h) lay down standards for the quality of air;
(i) collect and disseminate information in respect of matters relating to air pollution;
(j) perform such other functions as may be prescribed.
(3) The Central Board may establish or recognise a laboratory or laboratories to enable the Central Board to perform its functions under this section efficiently.
(4) The Central Board may—
(a) delegate any of its functions under this Act generally or specially to any of the committees appointed by it;
(b) do such other things and perform such other acts as it may think necessary for the proper discharge of its functions and generally for the purpose of carrying into effect the purposes Of this Act.
17. Functions of State Boards.
(1) subject to the provisions of this Act, and without prejudice to the performance of its functions, if any, under the Water (Prevention and Control of Pollution) Act, 1974 (Act 6 of 1974), the functions of a State Board shall be—
(a) to plan a comprehensive programme for the prevention, control or abatement of air pollution and to secure the execution thereof,
(b) to advise the State Government on any matter concerning the prevention, control or abatement of air pollution;
(c) to collect and disseminate information relating to air pollution;
(d) to collaborate with the Central Board in organising the training of persons engaged or to be engaged in programmes relating to prevention, control or abatement of air pollution and to organise mass–education programme relating thereto;
(e) to inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process and to give, by order, such directions to such persons as it may consider necessary to take steps for the prevention, control or abatement of air pollution;
(f) to inspect air pollution control areas at such intervals as it may think necessary, assess the quality of air therein and take steps for the prevention, control or abatement of air pollution in such areas;
(g) to lay down, in consultation with the Central Board and having regard to the standards for the quality of air laid down by the Central Board, standards for emission of air pollutants into the atmosphere from industrial plants and automobiles or for the discharge of any air pollutant into the atmosphere from any other source whatsoever not being a ship or an aircraft:
Provided that different standards for emission may be laid down under this clause for different industrial plants having regard to the quantity and composition of emission of air pollutants into the atmosphere from such industrial plants;
(h) to advise the State Government with respect to the suitability of any premises or location for carrying on any industry which is likely to cause air pollution;
(i) to Perform such other functions as may be prescribed or as may, from time to time, be entrusted to it by the Central Board or the State Government;
(j) to do such other things and to perform such other acts as it may think necessary for the proper discharge of its functions and generally for the purpose of carrying into effect the purposes of this Act.
(2) A State Board may establish or recognise a laboratory or laboratories to enable the State Board to perform its functions under this section efficiently.
18. Power to give directions.
13[(]) In the performance of its functions under this Act—
(a) the Central Board shall be bound by such directions in writing as the Central Government may give to it; and
(b) every State Board shall be bound by such directions in writing as the Central Board or the State Government may give to it:
Provided that where a direction given by the State Government is inconsistent with the direction given by the Central Board, the matter shall be referred to the Central Government for its decision.
14[(2) Where the Central Government is of the opinion that any State Board has defaulted in complying with any directions given by the Central Board under sub–section (1) and as a result of such default a grave emergency has arisen and it is necessary or expedient so to do in the public interest, it m4y, by order, direct the Central Board to perform any of the functions of the State Board in relation to such area, for such period and for such purposes, as may be specified in the order.
(3) Where the Central Board performs any of the functions of the State Board in pursuance of a direction under sub–section (2), the expenses, if any incurred by the Central Board with respect to the performance of such functions may, if the State Board is empowered to recover such expenses, be recovered by the Central Board with interest (at such reasonable rate as the Central Government may, by order, fix) from the date when a demand for such expenses is made until it is paid from the person or persons concerned as arrears of land revenue or of public demand.
(4) For the removal of doubts, it is hereby declared that any directions to perform the functions of any State Board given under sub–section (2) in respect of any area would not preclude the State Board from performing such functions in any other area in the State or any of its other functions in that area.]
CHAPTER IV
PREVENTION AND CONTROL OF AIR POLLUTION
19. Power to declare air pollution control areas,
(1) The State Government may, after consultation with the State Board, by 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,—
(a) alter 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 parts thereof.
(3) If the State Government, after consultation with the State Board, is of opinion that the use of any fuel, other than an approved fuel, in any air pollution control area or part thereof, may cause or is likely to cause air pollution, it may, by notification in the Official Gazette, prohibit the use of such fuel in such area or part thereof with effect from such date (being not less than three months from the date of publication of the notification) as may be specified in the notification.
(4) The State Government may, after consultation with the Sate Board, by notification in the Official Gazette, direct that with effect from such date as may be specified therein, no appliance, other than an approved appliance, shall be used in the premises situated in an air pollution control area;
Provided that different dates may be specified for different parts of an air pollution control area or for the use of different appliances.
(5) If the State Government, after consultation with the State Board, is of opinion that the burning of any material (not being fuel) in any air pollution control area or part thereof may cause or is likely to cause air pollution, it may, by notification in the Official Gazette, prohibit the burning of such material in such area or part thereof.
20. Power to give instructions for ensuring standards for emission from automobiles.
With a view to ensuring that the standards for emission of air pollutants from automobiles laid down by the State Board tinder clause (g) of sub–section (1) of section 17 are complied with, the State Government shall, in consultation with the State Board, give such instructions as may be deemed necessary to the concerned authority in charge of registration of motor vehicles under the Motor Vehicles Act, 1939 (Act 4 of 1939), and such authority shall, notwithstanding anything contained in that Act or the rules made thereunder be bound to comply with such instructions.
21. Restrictions on use of certain industrial plants.
15[(/) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area:
Provided that a person operating any industrial plant in any air pollution control area, immediately before the commencement of section 9 of the Air (Prevention and Control of Pollution) Amendment Act, 1987, for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent within the said period of three months, till the disposal of such application.]
(2) An application for consent of the State Board under sub–section (1) shall be accompanied by such fees as may be prescribed ‘and shall be made in the prescribed form and shall contain the particulars of the industrial plant and such other particulars as may be prescribed:
Provided that where any person, immediately before the declaration of any area as an air pollution control area, operates in such area any industrial plant, 16*** such person shall make the application under this sub–section within such period (being not less than three months from the date of such declaration) as may be prescribed and where such person makes such application, he shall be deemed to be operating such industrial plant with the consent of the State Board until the consent applied for has been refused,
(3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub–section (1) and in making any such inquiry, shall follow such procedure as may be prescribed.
(4) Within a period of four months after the receipt of the application for consent referred to in sub–section (1), the State Board shall, by order in writing, 17[and for reasons to be recorded in the order, grant the consent applied for subject to such conditions and for such period as may be specified in the order, or refuse consent:]
18[Provided that it shall be open to the State Board to cancel such consent before the expiry of the period for which it is granted or refuse further consent after such expiry if the conditions subject to which such consent has been granted are not fulfilled:
Provided further that before cancelling a consent or refusing a further consent under the first provision, a reasonable opportunity of being heard shall be given to the person concerned.]
(5) Every person to whom consent has been granted by the State Board under sub–section (4), shall comply with the following conditions, namely —
(i) the control equipment of such specifications as the State Board may approve in this behalf shall be installed and operated in the premises where the industry is carried on or proposed to be carried on;
(ii) the existing control equipment, if any, shall be altered or replaced in accordance with the directions of the State Board;
(iii) the control equipment referred to in clause (i) or clause (ii) shall be kept at all times in good running condition;
(iv) chimney, wherever necessary, of such specifications as the State Board may approve in this behalf shall be erected or re–erected in such premises; .and
(v) such other conditions as the State Board, may specify in this behalf,
(vi) the conditions referred to in clauses (i), (ii) and (iv) shall be complied with within such period as the State Board may specify in this behalf—
Provided that in the case of a person operating any industrial plant 19*** in an air pollution control area immediately before the date of declaration of such area as an air pollution control area, the period so specified shall not be less than six months:
Provided further that—
(a) after the installation of any control equipment in accordance with the specifications under clause (i), or
(b) after the alteration or replacement of any control equipment in accordance with the directions of the State Board under clause (ii), or
(c) after the erection or re–erection of any chimney under clause (iv), no control equipment or chimney shall be altered or replaced or, as the case may be, erected or re–created except with the previous approval of the State Board.
(6) If due to any technological improvement or otherwise the State Board is of opinion that all or any of the conditions referred to in sub–section (5) require or requires variation (including the change of any control equipment, either in whole or in part), the State Board shall, after giving the person to whom consent has been granted an opportunity of being heard, vary all or any of such conditions and thereupon such person shall be bound to comply with the conditions as so varied.
(7) Where a person to whom consent has been granted by the State Board under sub–section (4) transfers his interest in the industry to any other person, such consent shall be deemed to have been granted to such other person and he shall be bound to comply with all the conditions subject to which it was granted as if the consent was granted to him originally.
22. Persons carrying on industry, etc., and to allow emission of air pollutants in excess of the standard laid down by State Board.
No person 20**** 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.
21[22A. Power of Board to make application to court for restraining person from causing air pollution.
(1) Where it is apprehended by a Board that 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, is likely to occur by reason of any person operating an industrial plant or otherwise in any air pollution control area, the Board may make an application to a court, not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class for restraining such person from emitting such air pollutant.
(2) On receipt of the application under sub–section (1), the court may make such order as it deems fit.
(3) Where under sub–section (2), the court makes an order restraining any person from discharging or causing or permitting to be discharged the emission of any air pollutant, it may, in that order,—
(a) direct such person to desist from taking such action as is likely to cause emission;
(b) authorise the Board, if the direction under clause (a) is not complied with by the person to whom such direction is issued, to implement the direction in such manner as may be specified by the court.
(4) All expenses incurred by the Board in implementing the directions of the court under clause (b) of sub–section (3) shall be recoverable from the person concerned as arrears of land revenue or of public demand.
23. Furnishing, of information to State Board and other agencies in certain cases.
(1) Where in any 22*** area the emission of any air pollutant into the atmosphere in excess of the standards laid down by the State Board occurs or is apprehended to occur due to accident or other unforeseen act or event, the person in charge of the premises from where which emission occurs or is apprehended to occur shall forthwith intimate the fact of such occurrence or the apprehension of such occurrence to the State Board and to such authorities or agencies as may be prescribed.
(2) On receipt of information with respect to the fact or the apprehension of any occurrence of the nature referred to in sub–section (1), whether through intimation under that sub–section or otherwise, the State Board and the authorities or agencies shall, as early as practicable, cause such remedial measure to be taken as are necessary to mitigate the emission of such air pollutants.
(3) Expenses, if any, incurred by the State Board, authority or agency with respect to the remedial measures referred to in sub–section (2) together with interest (“t such reasonable rate, as the State Government may, by order, fix) from the date when a demand for the expenses is made until it is paid, may be recovered by that Board, authority or agency from the person concerned, as arrears of land revenue, or of public demand.
24. Power of entry and inspection.
(1) Subject to the provisions of this section, any person empowered by a State Board in this behalf shall have a right to enter, at all reasonable times with such assistance as he considers necessary, any place—
(a) for the purpose of performing any of the functions of the State Board entrusted to him;
(b) for the purpose of determining whether and if so in what manner, any such functions are to be performed or whether any provisions of this Act or the rules made thereunder or any notice, order, direction or authorisation served, made, given or granted under this Act is being or has been complied with;
(c) for the purpose of examining and testing any control equipment, industrial plant, record, register, document or any other material object or for conducting a search of any place in which he has reason to believe that an offence under this Act or the rules made has been or is being or is about to be committed and for seizing any such control equipment, industrial plant, record, register, document or other material object if he has reasons to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder.
(2) Every person 23*** operating any control equipment or any industrial plant, in an air pollution control area shall be bound to render all assistance to the person empowered by the State Board under sub–section (1) for carrying out the functions under that sub–section and if he fails to do so without any reasonable cause or excuse, he shall be guilty of an offence under this Act.
(3) If any person willfully delays or obstructs any person empowered by the State Board under sub–section (1) in the discharge of his duties, he shall be guilty of an offence under this Act.
(4) The provisions of the Code of Criminal Procedure, 1973, or, in relation to the State of Jammu and Kashmir, or any area, in which that Code is not in force, the provisions of any corresponding law in force in that State or area, shall, so far as may be, apply to any search or seizure under this section as they apply to any search or seizure made under the authority of a warrant issued under section 94 of the said Code or, as the case may be, under the corresponding provisions of the said law.
25. Power to obtain information.
For the purposes of carrying out the functions entrusted to it, the State Board or any officer empowered by it in Ns behalf may call for any information (including information regarding the types of air pollutants emitted into the atmosphere and the level of the emission of such air pollutants) from the occupier or any other person carrying oil any industry or operating any control equipment or industrial plant and for the purpose of verifying the correctness of such information, the State Board or such officer shall have the right to inspect the premises where such industry, control equipment or industrial plant is being carried on or operated.
26. Power to take samples of air or emission and procedure to be followed in connection therewith.
(1) A State Board or any officer empowered by it in this behalf shall have power to take, for the purpose of analysis, samples of air or emission from any chimney, flue or duct or any other outlet in such manner as may be prescribed.
(2) The result of any analysis of a sample of emission taken under subsection (1) shall not be admissible in evidence in any legal proceeding unless the provisions of sub–sections (3) and (4) are complied with.
(3) Subject to the provisions of sub–section (4), when a sample of emission is taken for analysis under sub–section (1), the person taking the sample shall—
(a) serve on the occupier or his agent, a notice, then and there, in such form as may be prescribed, of his intention to have it so analysed;
(b) in the presence of the occupier or his agent, collect a sample of emission for analysis;
(c) cause the sample to be placed in a container or containers which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent;
(d) send, without delay, the container to the laboratory established or recognised by the State Board under section 17 or, if a request in that behalf is made by the occupier or his agent when the notice is served on him under clause (a), to the laboratory established or specified under sub–section (1) of section 28.
(4) When a sample of emission is taken for analysis under sub–section (1) and the person taking the sample serves on the occupier or his agent, a notice under clause (a) of sub–section (3), then,—
(a) in a case where the occupier or his agent willfully absents himself, the person taking the sample shall collect the sample of emission for analysis to be placed in a container or containers which shall be marked and sealed and shall also be signed by the person taking the sample, and
(b) in a case where the occupier or his agent is present at the time of taking the sample but refuses to sign the marked and scaled container or containers of the sample of emission as required under clause (c) of subsection (3), the marked and sealed container or containers shall be signed by the person taking the sample,
and the container or containers shall be sent without delay by the person ‘Caking the sample for analysis to the laboratory established or specified under sub–section (7) of section 28 and such person shall inform the Government analyst appointed under sub–section (1) of section 29, in writing, about the wilful absence of the occupier or his agent, or, as the case may be, his refusal to sing the container or containers.
27. Reports of the result of analysis on samples taken under section 26.
(1) Where a sample of emission has been sent for analysis to the laboratory established or recognised by the State Board, the Board analyst appointed under sub–section (2) of section 29 shall analyse the sample and submit a report in the prescribed form of such analysis in triplicate to the State Board.
(2) On receipt of the report under sub–section (1), one copy of the report shall be sent by the State Board to the occupier or his agent referred to in section 26, another copy shall be preserved for production before the court in case any legal proceedings are taken against him and the other copy shall be kept by the State Board.
(3) Where a sample has been sent for analysis under clause (a~ of sub–section (3) or sub–section (4) of section 26 to any laboratory mentioned therein, the Government analyst referred to in the said sub–section (4) shall analyse the sample and submit a report in the prescribed form of the result of the analysis in triplicate to the State Board which shall comply with the provisions of sub–section (2).
(4) Any cost incurred in getting any sample analysed at the request of the occupier or his agent as provided in clause (d) of sub–section (3) of section 26 or when he wilfully absents himself or refuses to sing the marked and scaled container or containers of sample of emission under sub–section (4) of that section, shall be payable by such occupier or his agent and in case of default the same shall be recoverable from him as arrears of land revenue or of public demand.
28. State Air Laboratory.
(1) The State Government may, by notification in the Official Gazette,—
(a) establish one or more State Air Laboratories; or
(b) specify one or more laboratories or institutes as State Air Laboratories to carry out the functions entrusted to the State Air Laboratory under this Act.
(2) The State Government may, after consultation with the State Board, make rules prescribing—
(a) the functions of the State Air Laboratory;
(b) the procedure for the submission to the said Laboratory of samples of air or emission for analysis or tests, the form of the Laboratory’s report thereon and the fees payable in respect of such report;
(c) such other matters as may be necessary or expedient to enable that Laboratory to carry out its functions.
29. Analysis.
(1) The State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit and having the prescribed qualifications to be government analysts for the purpose of analysis of samples of air or emission sent for analysis to any laboratory established or specified under sub–section (1) of section 28.
(2) Without prejudice to the provisions of section 14, the State Board may, by notification in the Official Gazette, and with the approval of the State Government, appoint such persons as it thinks fit and having the prescribed qualifications to be Board analysts for the purpose of analysis of samples of air or emission sent for analysis to any laboratory established or recognised under section 17.
30. Reports of analysis.
Any document purporting to be a report signed by a Government analyst or, as the case may be, a State Board analyst may be used as evidence of the facts stated therein in any proceeding under this Act.
31. Appeals,
(1) Any person aggrieved by an order made by the State Board under this Act may, within thirty day from the date on which the order is communicated to him, prefer an appeal to such authority (hereinafter referred to as the Appellate Authority) as the State government may think fit to constitute:
Provided that the Appellate Authority may entertain the appeal after tile expiry of the said period of thirty days if such authority is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2). The Appellate Authority shall consist of a single person or three persons as the State Government may think fit to be appoint by the State Government.
(3) The form and the manner in which an appeal may be preferred under subsection (1), the fees payable for such appeal and the procedure to be followed by the Appellate Authority shall be such as may be prescribed.
(4) On receipt of an appeal preferred under sub–section (1), the Appellate Authority shall, after giving the appellant and the State Board an opportunity of being heard, dispose of the appeal as expeditiously as possible.
24[31A. Power to give directions
Notwithstanding anything contained in any other law, and 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 tile power to issue directions under this section, includes the power to direct—
(a) the closure, prohibition or regulation of any industry, operation or
(b) the stoppage or regulation of supply of electricity, water or any other service.]
CHAPTER V
FUND, ACCOUNTS AND AUDIT
32. Contribution by Central Government.
The Central Government may, after due appropriation made by Parliament by law in this behalf make in each financial year such contributions to the State Boards as it may think necessary to enable the State Board to perform their functions under this Act:
Provided that noting in this section shall apply to any 25[State Board for the Prevention and Control of water Pollution] constituted under section 4 of the Water (Prevention and Control of Pollution) Act, 1974, which is empowered by that Act to expend money from its fund thereunder also for. performing its functions, under any law for the time being in force relating to the prevention, control or abatement of air pollution.
33. Fund of Board.
(1) Every State Board shall have its own fund for the purposes of this Act and all sums which may, from time to time, be paid to it by the *Central Government and all other receipts (by way of contributions, if any, from the State Government, fees, gifts, grants, donations benefactions or otherwise) of that Board shall be carried to the fund of the Board and all payments by the Board shall be made therefrom.
(2) Every State Board may expend such sums as it thinks fit for performing its functions under this Act and such sums shall be treated as expenditure payable out of the fund of that Board.
(3) Nothing in this section shall apply to any 25[State Board for the Prevention and Control of Water Pollution] constituted under section 4 of the Water (Prevention and Control of Pollution) Act, 1974, which is empowered by that Act to expend money from its fund thereunder also for performing its functions under any law for the time being in force relating to the prevention., control or abatement of air pollution.
26[33A. Borrowing powers of Board.
A Board may, with the consent of, or in accordance with the terms of any general or special authority given to it by, the Central Government or, as the case may be, the State Government, borrow money from any source by way of loans or issue of bonds, debentures or such other instruments, as it may deem fit, for discharging all or any of its functions under this Act.]
34. Budget.
The Central Board or as the case may be the State Board shall, during each financial year, prepare, in such form and at such time as may be prescribed, a budget in respect of the financial year next ensuing showing the estimated receipt and expenditure under this Act, and copies thereof shall be forwarded to the Central Government or, as the case may be, the State Government.
27[35. Annual report.
(1) The Central Board shall, during each financial year, prepare, in such form as may be prescribed, an annual report giving full account of its activities under this Act during the previous financial year and copies thereof shall be forwarded to the Central Government within four months from the last date of the previous financial year and that Government shall cause every such report to be laid before both Houses of Parliament within nine months of the last date of the previous financial year.
(2) Every State Board shall, during each financial year, prepare, in such forth as may be prescribed, an annual report giving full account of its activities under this Act during the previous financial year and copies thereof shall be forwarded to the State Government within four months from the last date of the previous financial year and that Government shall cause every such report to be laid before the State Legislature within a period of nine months from the date of the previous financial year.)
36. Accounts and audit.
(1) Every Board shall, in relation to its functions under this Act, maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government or, as the case may be, the State Government.
(2) The accounts of the Board shall be audited by an auditor duly qualified to act as an auditor of companies under section 226 of the Companies Act, 1956.
(3) The said auditor shall be appointed by the Central Government or, as the case may be, the State Government on the advice of the Comptroller and Auditor General of India.
(4) Every auditor appointed to audit the accounts of the Board under this Act shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Board.
(5) Every such auditor shall send a copy of his report together with an audited copy of the accounts to the Central Government or, as the case may be, the State Government.
(6) The Central Government shall, as soon as may be after the receipt of the audit report under sub–section (5), cause the same to be laid before both Houses of Parliament.
(7) The State Government shall, as soon as may be after the receipt of the audit report under sub–section (5), cause the same to be laid before the State Legislature.
CHAPTER VI
PENALTIES AND PROCEDURE
28[37. Failure to comply with the provisions of section 21 or section 22 or with the directions issued under section 31A.
(1) whoever fails to comply with the provisions of section 21 or section 22 or directions issued under section 3 1 A, shall, in respect of each such failure, be punishable with imprisonment for a terms 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 five thousand rupees for every day during which such failure continues after the conviction for the first such failure.
(2) 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.]
38. Penalties for certain acts.
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, or
(b) obstructs any person acting under the orders or directions of the Board from exercising his powers and performing his functions under this Act, or
(c) damages any works or property belonging to the Board, or
(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 purpose of this Act, or
(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, or
(f) in giving any information which he is required to give under this Act, makes a statement which is false in any material particular, or
(g) for the purpose of obtaining any consent under section 21, makes a statement which is false in any material particular shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to 29[ten thousand rupees] or with both.
30[39. Penalty for contravention of provisions of the Act.
Whoever contravenes any of the provisions of this Act or any order or direction issued thereunder, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees or with both, and in the case of continuing contravention, with an additional fine which may extend to five thousand, rupees for every day during which such contravention continues after conviction for the first such contravention.)
40. Offences by companies.
(1) Where an offence under this Act 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 the offence and 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 this Act, 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.
(2) Notwithstanding anything contained in sub–section (1), where an offence under this Act 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 purpose of this section,—
(a) “company” means any body corporate, and includes a firm or other association of individuals; and
(b) “director”, in relation to a firm, means a partner in the firm.
41. Offences by Government Departments.
(1) Where an offence under this Act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this section shall render such Head of the Department liable to any punishment 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.
(2) Notwithstanding anything contained in sub–section (1), where an offence under this Act has been committed by a Department of Government 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 officer, other than the Head of the Department, such officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. ,
42. Protection of action taken in good faith
No suit, prosecution or other legal proceeding shall lie against the Government or any officer of the Government or any member or any officer or other employee of the Board in respect of anything which is done or intended to be done in good faith in pursuance of Otis Act or the rules made thereunder.
31[43. Cognizance of offences
(1) No court shall take cognizance of any offence under this Act except on a complaint made by—
(a) a Board or any officer authorised in this behalf by it; or
(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Board or officer authorised as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
(2) Where a complaint has been made under clause (b) of sub–section (1), the
Board shall, on demand by such person, make available the relevant reports in its possession to that person:
Provided that the Board may refuse to make any such report available to such person if the same is, in its opinion, against the public interest.]
44. Members, officers and employees of Board to be public servants.
All the members and all officers and other employees of a Board when acting or purporting to act in pursuance of any of the provisions of this Act or the rules made thereunder shall be deemed to be public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).
45. Reports and returns.
The Central Board shall, in relation to its functions under this Act, furnish to the Central Government, and a State Board shall, in relation to its functions under this Act, furnish to the State government and to the Central Board such reports, returns, statistics, accounts and other information as that Government, or, as the case may be, the Central Board may, from time to time, require.
46. Bar of jurisdiction.
No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an Appellate Authority constituted under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
CHAPTER VII
MISCELLANEOUS
47. Power of Central Government to supersede State Board,
(1) If at any time the State Government is of opinion—
(a) that a State Board constituted under this Act has persistently made default in the performance of the functions imposed on it by or under this Act, or
(b) that circumstances exist which render it necessary in the public interest so to do,
the State Government may, by notification in the Official Gazette, supersede the State Board for such period, not exceeding six months, as may be specified in the notification:
Provided that before issuing a notification under this sub–section for the reasons mentioned in clause (a), the State Government shall give a reasonable opportunity to the State Board to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the State Board.
(2) Upon the publication of a notification under sub–section (1) superseding the State Board,—
(a) all the members shall, as from the date of supercession, vacate their offices as such;
(b) all the powers, functions and duties which may, by or under this Act, be exercised, performed or discharged by the State Board shall, until the State Board is reconstituted under sub–section (3), be exercised, performed or discharged by such person or persons as the State Government may direct;
(c) all property owned or controlled by the State Board shall, until the Board is reconstituted under sub–section (3), vest in the State Government.
(3) On the expiration of the period of supercession specified in the notification issued under sub–section (1), the State Government may—
(a) extend the period of supercession for such further term, not exceeding six months, as it may consider necessary; or
(b) reconstitute the State Board by a fresh nomination or appointment as the case may be, and in such case any person who vacated his office under clause (a) of sub–section (2) shall also be eligible for nomination or appointment.
Provided that the State Government may at any time before the expiration of the period of supercession whether originally specified under sub–section (1) or as extended under this sub–section, take action under clause (b) of this sub–section.
48. Special provision in the case of supercession of the Central Board or the State Boards constituted under the Water (Prevention and Control of Pollution) Act, 1974.
Where the Central Board or any State Board constituted under the Water (Prevention and Control of Pollution) Act, 1974 (Act 6 of 1974), is superseded by the Central Government or the State Government, as the case may be, under that Act, all the powers, functions and duties of the Central Board or such State Board under this Act shall be exercised, performed or discharged during the period of such supercession by the person or persons, exercising, performing or discharging the powers, functions and duties of the Central Board or such State Board under the Water (Prevention and Control of Pollution) Act, 1974, during such period.
49. Dissolution of State Boards constituted under the Act
(1) As and when the Water (Prevention and Control of Pollution) Act, 1974 (Act 6 of 1974), comes into force in any State and the State Government constitutes a I [State Board for the Prevention and Control of Water Pollution] under that Act, the State Board constituted by the State Government under this Act shall stand dissolved and the Board first–mentioned shall exercise the powers and perform the functions of the Board second–mentioned in that State,
(2) On the dissolution of the State Board constituted under this Act,—
(a) all the members shall vacate their offices as such;
(b) all moneys and other property of whatever kind (including the fund of the State Board) owned by, or vested in, the State Board, immediately before such dissolution, shall stand transferred to and vest in the 32[State Board for the Prevention and Control of Water Pollution];
(c) every officer and other employee serving under the State, Board immediately before such dissolution shall be transferred to and become an officer or other employee of the I [State Board for the Prevention and Control of Water Pollution] and hold office by the same tenure and at the same remuneration and on the same terms and conditions of service as he would have held the same if the State Board constituted under this Act had not been dissolved and shall continue to do so unless and until such tenure, remuneration and conditions of service are duly altered by the 33[State Board for the Prevention and Control of Water Pollution]:
Provided that the tenure, remuneration and terms and conditions of service of any such officer or other employee shall not be altered to his disadvantage without the previous sanction of the State Government;
(d) all liabilities obligations of the State Board of whatever kind, immediately before such dissolution, shall be deemed to be the liabilities or obligations, as the case may be, of the l[State Board for the Prevention and Control of Water Pollution] and any proceeding or cause of action, pending or existing immediately before such dissolution by or against the State Board constituted under this Act in relation to such liability or obligation may be continued and enforced by or against the I [State Board for the Prevention and Control of Water Pollution.]
50. [Power to amend the Schedule.]
Rep. by the Air (Prevention and Control of Pollution) Amendment Act, 1987 (47 of 1987), s. 22 (w.e.f. 1-4-1988).
51. Maintenance of register.
(1) Every State Board shall maintain a register containing particulars of the persons to whom consent has been granted under section 21, the standard for emission laid down by it in relation to each such consent and such other particulars as may be prescribed.
(2) The register maintained under sub–section (1) shall be open to inspection at all reasonable hours by any person interested in or affected by such standards for emission or by any other person authorised by such person in this behalf.
52. Effect of other laws.
Save as otherwise provided by or under the Atomic Energy Act, 1962 (33 of 1962), in relation to radioactive air pollution the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act.
53. Power of Central Government to make rules.
(1) The Central Government may, in consultation with the Central Board by notification in the Official Gazette, make rules in respect of the following matters namely:—
(a) the intervals and the time and place at which meetings of the Central Board or any committee thereof shall be held and the procedure to be followed at such meetings, including the quorum necessary for the transaction of business thereat, under sub–section (1) of section 10 and under sub–section (2) of section 11;
(b) the fees and allowances to be paid to the members of a committee of the Central Board, not being members of the Board, under sub–section (3) of section 11;
(c) the manner in which and the purposes for which persons may be associated with the Central Board under sub–section (1) of section 12;
(d) the fees and allowance to be paid under sub–section (3) of section 12 to persons associated with the Central Board under sub–section (1) of section 12;
(e) the functions to be performed by the Central Board under clause (j) of sub–section (2) of section 16;
34[(f) the form in which and the time within which the budget of the Central Board may be prepared and forwarded to the Central Government under section 34;
(ff) the form in which the annual report of the Central Board may be prepared under section 35];
(g) the form in which the accounts of the Central Board may be maintained under sub–section (1) of section 36.
(2) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
54. Power of State Government to make rules.
(1) Subject to the provisions of sub–section (3), the State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act in respect of matter 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 following matters, namely—
35[(a) the qualifications, knowledge and experience of scientific, engineering or management aspect of pollution control required for appointment as member–secretary of a State Board constituted under the Act;]
36[(aa) the terms and conditions of service of the Chairman and other members (other than the member–secretary) of the State Board constituted under this Act under sub–section (7) of section 7;
(b) the intervals and the time and place at which meetings of the State Board or any committee thereof shall be held and the procedure to be followed at such meetings, including the quorum necessary for the transaction of business thereat, under sub–section (1) of section 10 and under sub–section (2) of section 11;
(c) the fees and allowances to be paid to the members of a committee of the State Board, not being members of the Board under sub–section (3) of section 11;
(d) the manner in which and the purpose for which persons may be associated with the State Board under sub–section (1) of section 12;
(e) the fees and allowances to be paid under sub–section (3) of section 12 to persons associated with the State Board under sub–section (1) of section 12;
(f) the terms and conditions of service of the member–secretary of a State Board constituted under this Act under sub–section (1) of section 14;
(g) the powers and duties to be exercised and discharged by the member–secretary of a State Board under sub–section (2) of section 14;
(h) the conditions subject to which a State Board may appoint such officers and other employees as it considers necessary for the efficient performance of its functions under sub–section (3) of section 14;
(i) the conditions subject to which a State Board may appoint a consultant under sub–section (5) of section 14;
(j) the functions to be performed by the State Board under clause (i) of sub–section (1) of section 17;
(k) the manner in which any area or areas may be declared as air pollution control area or areas under sub–section (1) of section 19;
(l) the form of application for the consent of the State Board, the fees payable therefore, the period within which such application shall be made and the particulars it may contain, under sub–section (2) of section 21;
(m) the procedure to be followed in respect of an inquiry under subsection (3) of section 2 1;
(n) the authorities or agencies to whom information under sub–section (1) of section 23 shall be furnished;
(o) the manner in which samples of air or emission may be taken under sub–section (1) of section 26;
(p) the form of the notice referred to in sub–section (3) of section 26;
(q) the form of the report of the State Board analyst under sub–section (1) of section 27;
(r) the form of the report of the Government analyst under sub–section (3) of section 27;
(s) the functions of the State Air Laboratory, the procedure for the submission to the said Laboratory of samples of air or emission for analysis or tests, the form of Laboratory’s report thereon, the fees payable in respect of such report and other matters as may be necessary or expedient to enable that Laboratory to carry out its functions, under sub–section (2) of section 28;
(t) the qualifications required for Government analysts under subsection (1) of section 29;
(u) the qualification required for State Board analysts under sub–section (2) of section 29;
(v) the form and the manner in which appeals may be preferred, the fees payable in respect of such appeals and the procedure to be followed by the Appellate Authority in disposing of the appeals under sub–section (3) of section 31;
37[(w) the form in which and the time within which the budget of the State Board may be prepared and forwarded to the State Government under section 34;
(ww) the form in which the annual report of the State Board may be prepared under section 35];
(x) the form in which the accounts of the State Board may be maintained under the sub–section (1) of section 36;
38[(xx) the manner in which notice of intention to make a complaint shall be given under section 43;]
(y) the particulars which the register maintained under section 51 may contain;
(z) any other matter which has to be, or may be, prescribed.
(3) After the first constitution of the State Board, no rule with respect to any of the matters referred to in sub–section (2) other than those referred to 39[in clause (aa) thereof], shall be made, varied, amended or repealed without consulting that Board.
[The Schedule.]
Omitted by the air (Prevention and Control of Pollution) Amendment Act, 1987, s. 25 (w.e.f. 1-4-1988)
NOTES
1 16-5-1981: vide notification No. G.S.R. 351 (E), dated 15-5-1981, Gazette of India, Extraordinary, Part II, Section 3(i) page 944.
2 Ins. by Act 47 of 1987, s. 2 (w.e.f. 1-4-1988).
3 The words in brackets “Central Board for the Prevention and Control of Water Pollution” shall be subs. as “Central Pollution Control Board” by Act 47 of 1987, s. 2 (date to be notified).
4 Subs. by Act 47 of 1987, s. 2, for cl. (m) (w.e.f. 1-4-1988).
5 The words in brackets “State Board for the Prevention and Control of Water pollution” shall be subs. as “State Pollution Control Board” s. 2 ibid. (date to be notified).
6 For sections 3 and 4, the following sections shall stand subs. by s.3 ibid., (date to be notified) namely:—3. Central Pollution Control Board—The Central Pollution Control Board constituted under section 3 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), shall, without prejudice to the exercise and performance of its powers and functions under that Act, exercise the powers and perform the functions of the Central Pollution Control Board for the prevention and control of air pollution under this Act.
7 State Pollution Control Boards constituted under section 4 of Act 6 of 1974 to be State Boards under this Act.—In any State in which the Water (Prevention and Control of Pollution) Ai-t, 1974, is in force and the State Government has constituted for that State a State Pollution Control Board under section 4 of that Act, such State Board shall be deemed to be the State Board for the Prevention and Control of Air Pollution constituted under section 5 of this Act, and accordingly that State Pollution Control Board shall Without prejudice to the exercise and performance of its powers and functions under that Act, exercise the powers and perform the functions of the State Board for the prevention and control of air pollution under this Act.
8 The words in brackets “State Board for the Prevention and Control of Water Pollution” shall be substituted as “State Pollution Control Board” by Act 47 of 1987, s. 4, (date to be notified).
9 Subs. by s. 4, ibid., for cl. (f) (w.e.f. 1-4-1988).
10 The words “but not for more than two terms” omitted by Act 47 of 1987, s. 5 (w.e.f. 1.4.1988)
11 Subs. by Act 47 of 1987, -. 6, for sub–section (2) (w.e.f. 1-4-1988).
12 Ins. by Act 47 of 1987. s. 7 (w.e.f. 1-4-1988).
13 S. 18 renumbered as sub–section (1) thereof by Act 47 of 1987, s. 8 (w.e.f. 1-4-1988).
14 Ins. by s. 8, ibid. (w.e.f. 1-4-1988).
15 Subs. by Act 47 of 1987, s. 9, for sub–section (1) (w.e.f. 1-4-1988).
16 Certain words omitted by s. 9, ibid., (w.e.f. 1-4-1988).
17 Subs. by Act 47 of 1987, s. 9, for certain words (w.e.f. 1 .4 19881).
18 Ins. by s. 9, ibid. (w.e.f. 1-4-1988).
19 Certain words omitted by Act 47 of 1987,s. 9, (w.e.f. 1-4-988).
20 Certain words omitted by Act 47 of 1987, s. 10 . (w.e.f. 1-4-1998).
21 Ins by s. 11, ibid. (w.e.f. 1-4-1988).
22 The words “air pollution control” omitted by s. 12, ibid., (w.e.f. 14-1988).
23 Certain words omitted by Act 47 of 1987, s, 13 (w.e.f. 1-4-1988).
24 Ins. by Act 47 of 1987, s. 14 (w.e.f. 1-4-1988).
25 The Words in brackets “State Board for the Prevention and control of Water Pollution” shall be substituted as “State Pollution Control Board” by Act 47 of 1987, s. 15 (date to be notified).
26 Ins. by Act 47 of 1987, s. 16 (w.e.f. 1-4-1988).
27 Subs. by Act 47 of 1987, s. 17, for s. 35 (w.e.f. 1-4-1988).
28 Subs. by Act. 47 of 1987, s. 18, for s. 37 (w.e.f. 1-4-1988).
29 Subs. by Act 47 of,1987, s. 19, for “five hundred rupees” (w.e.f. 1-4-1988).
30 Subs. by s. 20. ibid., for s. 39 (w.e.f. 1-4-1988).
31 Subs. by Act 47 of 1987, s. 21, for s. 43 (w.e.f. 1-4-1988).
32 The Words in brackets “State Board for the Prevention and control of Water Pollution” shall be substituted as “State Pollution Control Board” by Act 47 of 1987, s. 15 (date to be notified).
33 The Words in brackets “State Board for the Prevention and Control of Water Pollution”, shall be substituted as “State Pollution Control Board” by Act 47 of 1987, s. 15 (date to be notified).
34 Subs. by Act 47 of 1987, s. 23, for cl. (f) (w.e.f. 1-4-1988).
35 Ins by Act 47 of 1987, s. 24, (w.e.f. 1-4-1988).
36 Act (p) renumbered as cl. (aa) by s. 24, ibid. (w.e.f. 1-4-1988).
37 Subs. by Act 47 of 1987, s. 24. for cl. (w) (w.e.f. 1-4-1988).
38 Ins. by Ac, 47 of 1987, s. 24 (w.e.f. 1-4-1988).
39 Subs. by s. 24, ibid., for “in clause (a)” (w.e.f. 1-4-1988).
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THE ENVIRONMENT (PROTECTION) ACT, 1986
No. 29 OF 1986
[23rd May, 1986.]
An Act to provide for the protection and improvement of environment and for matters connected there with:
WHEREAS the decisions were taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972, in which India participated, to take appropriate steps for the protection and improvement of human environment;
AND WHEREAS it is considered necessary further to implement the decisions aforesaid in so far as they relate to the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property;
BE it enacted by Parliament in the Thirty-seventh Year of the Republic of India as follows:-
CHAPTER I
PRELIMINARY
1. SHORT TITLE, EXTENT AND COMMENCEMENT
(1) This Act may be called the Environment (Protection) Act, 1986.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and for different areas.[1]
2. DEFINITIONS
In this Act, unless the context otherwise requires,—
(a) "environment" includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property;
(b) "environmental pollutant" means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment;
(c) "environmental pollution" means the presence in the environment of any environmental pollutant;
(d) "handling", in relation to any substance, means the manufacture, processing, treatment, package, storage, transportation, use, collection, destruction, conversion, offering for sale, transfer or the like of such substance;
(e) "hazardous substance" means any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plant, micro-organism, property or the environment;
(f) "occupier", in relation to any factory or premises, means a person who has, control over the affairs of the factory or the premises and includes in relation to any substance, the person in possession of the substance;
(g) "prescribed" means prescribed by rules made under this Act.
CHAPTER II
GENERAL POWERS OF THE CENTRAL GOVERNMENT
3. POWER OF CENTRAL GOVERNMENT TO TAKE MEASURES TO PROTECT AND IMPROVE ENVIRONMENT
(1) Subject to the provisions of this Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing controlling and abating environmental pollution.
(2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely:—
(i) co-ordination of actions by the State Governments, officers and other authorities—
(a) under this Act, or the rules made thereunder, or
(b) under any other law for the time being in force which is relatable to the objects of this Act;
(ii) planning and execution of a nation-wide programme for the prevention, control and abatement of environmental pollution;
(iii) laying down standards for the quality of environment in its various aspects;
(iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever:
Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources;
(v) 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;
(vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents;
(vii) laying down procedures and safeguards for the handling of hazardous substances;
(viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution;
(ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution;
(x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution;
(xi) establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act;
(xii) collection and dissemination of information in respect of matters relating to environmental pollution;
(xiii) preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution;
(xiv) such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act.
(3) The Central Government may, if it considers it necessary or expedient so to do for the purpose of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under section 5) of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise and powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures.
4. APPOINTMENT OF OFFICERS AND THEIR POWERS AND FUNCTIONS
(1) Without prejudice to the provisions of sub-section (3) of section 3, the Central Government may appoint officers with such designation as it thinks fit for the purposes of this Act and may entrust to them such of the powers and functions under this Act as it may deem fit.
(2) The officers appointed under sub-section (1) shall be subject to the general control and direction of the Central Government or, if so directed by that Government, also of the authority or authorities, if any, constituted under sub- section (3) of section 3 or of any other authority or officer.
5. POWER TO GIVE DIRECTIONS
Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.[3]
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) stoppage or regulation of the supply of electricity or water or any other service.
6. RULES TO REGULATE ENVIRONMENTAL POLLUTION
(1) The Central Government may, by notification in the Official Gazette, make rules in respect of all or any of the matters referred to in section 3.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—
(a) the standards of quality of air, water or soil for various areas and purposes;[4]
(b) the maximum allowable limits of concentration of various environmental pollutants (including noise) for different areas;
(c) the procedures and safeguard