Objectives of The Air Act:
In order to prevent and control the pollution of air, the Parliament passed legislation in the year 1981. It came into force from 30th March 1981. The main object of the Air Act, as enshrined in its preamble is, to preserve the quality of air and to control air pollution. The Air Act extends to the whole of India including the State of Jammu and Kashmir.
The salient features of the Air Act:
The Air Act consists of 54 sections divided into seven Chapters. Chapter-I, containing Sections 1 and 2 deals with Preliminary and Definitions of certain terms respectively. Chapter-II containing Sections 3 to 15 deals with Central and State Boards for the prevention and control of Air Pollution. Chapter-III (Sections 16 to 18) lays down the powers and functions of Air Pollution Control Boards. Chapter-IV (Sections 19 to 31-A) provides for prevention and control of Air Pollution. Chapter-V (Sections 32 to 36) relates to funding, Accounts and Audit. Chapter-VI (Sections 37 to 46) deals with Penalties and Procedure. Finally, Chapter-VII (Sections 47 to 54) contains ‘Miscellaneous Provisions’.
- Preliminary: Chapter-I of the Air Act consists of Section 1 and Section 2. Section 1 contains short title, extent and commencement of the Air Act. Section 2 provides for definitions of certain terms namely: a) air pollutant; b) air pollution; j) emission; m) occupier etc. as stated below:-
- Air Pollutant: Air pollutant means any solid, liquid or gaseous substance 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.
- Air Pollution: means the presence in the atmosphere of any air pollutant.
- Emission: It means any solid or liquid or gaseous substance coming out of any chimney, duct or flue or any other outlet.
- 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.
- Central and State Boards for the Prevention and Control of Air Pollution: Chapter-II containing Sections 3 to 15 provides for constitution and powers of Central and State Pollution Control Boards.
Section 3 of the Air Act provides that the Central Pollution Control Board constituted under Section 3 of the Water (Prevention and Control of Pollution) Act, 1974 shall also exercise the powers and perform the functions of the Central Pollution Control Board for the prevention control of air pollution under this Act. This extension of the jurisdiction of Central Board under the Water Act to the Air Act will not affect in any way the exercise of power and performance of a function under that Act. The purpose of extension of jurisdiction is to prevent the multiplicity of Boards and members relating to prevention and control of pollution.
Functions of Central Board:
The main function of the Central Board is to improve the quality of air and to prevent control or abate air pollution in the country. (Section 16(1). In addition to this main function, the Central Board may exercise the following functions (Section 16(2):-
(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 nationwide programme for the prevention, control or abatement of air pollution;
(c) co-ordinate the activities of the State Boards 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;
(dd) perform such of the functions of any State Board as may be specified in an 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 such terms and conditions as the Central Board may specify;
(f) organise through a mass media comprehensive programme for the prevention, control or abatement of air pollution;
(g) collect, compile and publish technical and statistical data relating to air pollution and the measures demised for its effective prevention, control or abatement and prepare manuals, codes or guides relating to the 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.
For the purposes of performing the above-mentioned functions efficiently, the Central Board may establish or recognise a laboratory or laboratories as it may deem fit. (Section 16(3)). The Central Board ordinarily exercise its functions directly. But it may:-
- Delegate any of its functions under the Air Act generally or especially to any of the committees appointed by it;
- 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 purposes of carrying into effect the purposes of the Air Act (Section 14(4)).
Functions of State Boards – Section 17(1):
Subject to the provision of the Air Act, the functions of the State Board shall be:
- to plan a comprehensive programme for the prevention, control or abatement of air pollution and, to secure the execution thereof;
- to advise the State Government on any matter concerning the prevention, control or abatement of air pollution;
- to collect and disseminate information relating to air pollution;
- to collaborate with the Central Board in organising the training of persons engaged or to be engaged in programmes relating to the prevention, control, or abatement of air pollution and to organise mass education programme relating thereto:
- 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;
- to inspect air pollution control area 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;
- 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 atmosphere from any other source whatsoever not being a ship or an aircraft: however, different standards for emission may be laid down for different industrial plants having regard to the quantity and composition of emission of air pollutants into the atmosphere from such industrial plants;
- 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;
- 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;
- 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 purposes of carrying into effect the purpose of the AIr Act.
The State Board, for the performance of its functions efficiently, may establish or recognise a laboratory or laboratories – Section 17 (2).
Prevention and Control of Air Pollution:
Chapter-IV containing Sections 19 to 31. A provides for prevention and control of Air Pollution as enumerated hereunder:
Powers conferred upon the State Government to declare an area as air pollution control area-
Section 19(1) provides that the State Government 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 the Air Act.
The State Government may also after consultation with the State Board by notification in the Official Gazette-
- Alter any air pollution control area whether by way extension or reduction;
- Declare a new air pollution control area in which may merge one or more existing air pollution control areas or any part or parts thereof.
If State Government after consultation with the State Board is of the 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 (S.19(3). Under the provision, it has been ordered that in all the metropolitan cities lead-free petrol shall be distributed and therefore the old vehicles in such cities have to be fitted with a new device to meet the new situations, whereas only such new vehicle would be registered which are fitted with the new device. This is an effective measure to control air pollution.
In cities, especially in big and industrial cities, motor vehicles are the most serious source of air pollution. The fuel which is used in them in the form of petrol contains lead tetraethyl and after burning in the engine it is exhausted as lead oxides which are highly toxic and harmful.
Due to the introduction of Maruti technology, the ideas of super petrol were introduced which contains 900 gms lead in one Kilolitre of petrol. Experts are of the opinion that if lead could be eliminated from petrol, the solid matters in the exhaust could be reduced by 80% and unburned hydrocarbons up to 30%. Thus, this provision would be an important factor in the direction of prevention and control of environmental pollution and that is why this step was taken by the Government.
Section 19(4), lays down that the State Government may after consultation with the State Board, direct that with effect from the date as may be notified, no appliances other than an approved appliance shall be used in the premises situated in an air pollution control area as the state Government may desire, it may notify different dates for different parts of an air pollution control area, or for the use of different appliances.
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.
Other Powers conferred upon State Government:
- Power to give instruction for ensuring standards for emission from automobiles: In order to ensure that the standards of emission of air pollutants from automobiles laid down by the State Board under clause (g) of Section 17(1) 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, 1988, and such authority shall, notwithstanding anything contained in the Air Act or the Rules made thereunder be bound to comply with such instructions.
- Power to impose a restriction on the use of certain industrial Plants: No person, shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area. But a person already 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. (Sec.21. (1)). If no consent is granted, then the operation of that plant has to be stopped. The State Board before granting or refusing to grant permission may make such enquiry as it may deem fit and in making such enquiry, shall follow such procedure as may be prescribed (Sec.21. (3)).
- Power of Board to make application to court for restraining persons from causing air pollution: Where it is apprehended by a Board that emission of air pollutant, excess of the standard laid down by the State Board 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 pollution. The Court to whom such an application is made may make such order as it may deem fit. Sec. 22A (2).
- Power to entry and inspection: Any person empowered by the State Board in this behalf shall have the right to enter at all reasonable times with such assistance as he may consider necessary, any place:
- For the purpose of performing any of the functions of the State Board entrusted to him;
- For the purpose of determining whether, and if so, in what manner, any such functions are to be performed or whether any provisions of the Air Act or the Rules made thereunder, or any notice, order or direction, or authorization served, made, given or granted under the Air Act, is being or has been complied with;
- 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 the Air Act or the Rules made thereunder has been or is about to commit and for seizing any such control, equipment, industrial plant, record, register, document or other material object if he has reason to believe that it may furnish evidence of the commission of an offence punishable under the Air Act or the rules made thereunder. (S.24 (1)).
- Power to obtain information: For the purposes of carrying out the functions entrusted to the State Board, it may or any officer empowered by it in that behalf may call for any information regarding the type of air pollution emitted into the atmosphere and the level of the emission of each air pollutant from the occupier or any other person carrying on any industry 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 being carried on or operated. (S. 25).
- Power to take samples of air or emission: A State Board or any officer empowered by it in this behalf shall have power to take for the purposes of analysis, samples of air or emission from any chimney, flue or dock or any other outlet in such manner as may be prescribed. (S.26 (1)).
- Power to give directions: Subject to the provisions of the Air Act and to any directions that the Central Government may give in this behalf, a State Board may, in the exercise of its powers and performance of its functions under the Air Act, issue any directions in writing to any person, officer or authority. The State Board may specifically direct:-
- The closure, prohibition or regulation of any industry, operation or process; or
- The stoppage or regulations of supply of electricity, water or any other service. (S.33-A).
Penalties and Procedure in the Air Act:
Sections 37 to 46 of the Act deal with the provisions relating to penalties and procedure, as given below:
- Penalty for failure to comply with the provisions of Section 21 or 22 With the direction issued under Section 31-A: Section 37 lays down that whoever fails to comply with any of the provisions above mentioned, shall in respect of such failure be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years 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.
- The penalty of certain other acts: Section 38 of the further provides that whoever:-
- Destroys, pulls down, removes, injures, 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
- Obstructs any person acting under the orders or directions of the Board from exercising his power and performing the functions under this Act; or
- Damages any works or property belonging to the Board; or
- Fails to furnish the Board or any officer or another employee of the Board any information required by the Board or such officer or another employee for the purpose of this Act; or
- 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 Section 23(1); or
- In giving any information which, he is required to give under this Act, makes a statement which is false in any material particular, or
- 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 ten thousand rupees or with both.
- Penalty for contravention of certain provisions of the Act: Section 39 mandates that whoever contravenes any of the provisions of this Act or any order, or direction issued thereunder, for which no penalty is prescribed elsewhere 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 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 first such contravention.
- Penalty for offences by companies: Section 40(1) lays down as to who shall be punishable if the offender is a company. It is provided in this sub-section that where an offence under this Act, has been committed by a company, every person who, at the time of the offence was committed, was directly in charge of and was responsible to, the company for the conduct of 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. However, a person shall not be liable for such 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.
Section 40(2) casts the punishment on officers of a company who are found to be in connivance or consenting with the commission of such offence or negligent thereof. It says that where any offence under the Air Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of any director, manager, secretary, or another officer of the company, such director, 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.
In this connection, “Company” means anybody corporate, and includes a firm or other association of individuals; and the term “director” in relation to a firm, means a partner in the firm.
- Penalty for offences by Government Departments: Section 41 (1) lays down that where an offence 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. However, the Head of the Department shall not be liable for 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.
Section 41 (2) declares the liability of the officer in connivance, or in consent, or in attributability to neglect of the offence, that where an offence under the Air 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 officer other than the Head of the Department then such officer also shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Cognizance of offences:
Section 43 of the Air Act, lays down the provision relating to the cognizance of offences under the Air Act. It declares that “No Court shall take cognizance of any offence under the Air Act except on a complaint made by:-
- A Board or any officer authorized in this behalf by it; or
- Any person who has given notice of not less than 60 days, in the manner prescribed of the alleged offence and of his intention to make a complaint to the Board or officer authorized 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 the Air Act.
Section 43(2) describes the power of the Board that where a complaint to the Board has been made, the Board shall on demand by such person, make available the relevant reports in its possession to that person. However, the Board may refuse to make any such report available to such person if the same in its opinion is against the public interest.
Civil Court’s Jurisdiction is barred:
Section 46 lays down that no Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter for which an Appellate Authority constituted under the Air Act is empowered by or under the Air Act to determine and no injunction shall be granted by any Court to other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Air Act.