April 27,2019:

The Author, Nidhi Garg is a student of University Institute of Legal Studies, Chandigarh University. She is currently interning with LatestLaws.com.

INTRODUCTION:

Industrialization and urbanization have resulted in a profound deterioration of India’s air quality. Of the 3 million premature deaths in the world that occur each year due to outdoor and indoor air pollution, the highest numbers are assessed to occur in India. According to the World Health Organization, the capital city New Delhi is one of the top most polluted cities in the world. Surveys indicate that in New Delhi the incidence of respiratory disease due to air pollution is about 12 times the national average.The act provides for the prevention, control and abatement of air pollution. It also provides for the establishment of Boards with a view to carrying out the aforesaid purposes.

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 pollution;

The AIR (Prevention and Control of Pollution) Act, 1981 extends to the whole of India.

Q1. What are AIR Pollutant?

Ans- ‘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.

Q2.What are the functions of Central and State Boards for the prevention and control of Air Pollution?

Ans- Both the Central and State Pollution Boards have been established for prevention and control of Air Pollution.

Central Board can exercise the powers and performs the functions of a state Board in the Union Territories. No state Board shall be constituted for a Union Territory. Provided that in relation to any Union Territory the Central Board may delegate all or any of its power and functions under this section to such person or body of persons as the Central Government specify.

Powers and Functions of Central Board-

The main function of the Central Board shall be to improve the quality of air and to prevent, control or abate air pollution in the country.
It may:

Advise the Central Government on any matter concerning the improvement of the quality of air;
Plan and cause to be executed a nation-wide programme for the prevention, control or abatement of air pollution;
Co-ordinate the activity of State and resolve disputes among them;
Provide technical assistance and guidance to the state boards, carry out and sponsor investigations and research relating to problems of air pollution.
Organize through mass media a comprehensive programme regarding the prevention, control or abatement of air pollution.

The Central Board may establish or recognize a laboratory to enable the Central Board to perform its functions under this section efficiently.

Functions of State Boards shall be-

To plan a comprehensive programme for the prevention, control or abatement of air pollution;
To advise the State Government on any matter concerning the prevention of air pollution;
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 of air pollution in such areas;
To inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process, and to give by order such directions to such person as it may consider necessary to take steps for prevention of air pollution.

Q3. Describe the composition of State Board.

Ans- State Board shall consist of the following members, namely:

A chairman, being 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 may be either whole-time or part-time as the State Government may think fit;

Such number of officials, not exceeding five, as the State Government may think fit, to be nominated by State Government to represent that Government;
Such numbers of persons, not exceeding five, as the State Government may think fit, to be nominated by the State Government from amongst the member of the local authorities functioning within the State;
Such numbers 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;
Two persons to represent the companies or corporation owned, controlled or managed by the State Government, to be nominated by that Government;
A full-time member-secretary having such qualifications, knowledge and experience of scientific, engineering or management aspect of pollution control as may be prescribed, to be appointed by the State Government.

Provided that the State Government shall ensure that not less than two of member are persons having special knowledge or practical experience in respect of matters relating to the improvement of the quality of air.

Q4. What are the terms and conditions of service of member of a board?

Ans- (1) 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 CI or of sub-section (2) of Sec. 5 shall come to an end as soon as he ceases to hold the office under the State Government or, 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 the 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 seat, 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 CI or of sub-section (2) of Sec. 5, he ceases to be a member of the local authority and such vacation of seat shall, in either case, take effect from such date 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 the term for which the member whose place he takes was nominated.

(6) A member of a State Board constituted under this Act shall be eligible for renomination.

(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.

Q5. What are the disqualification of a member of a board?

Ans- No person shall be the member of the Board who-

is, or at any time has been adjudged insolvent, or
is of unsound mind and has been so declared by a competent court, or
has been convicted of an offence which in the opinion of the State Government involves moral turpitudes, or
has directly or indirectly by himself or by any partner, any share or interest in any firm or company carrying on the business of manufacture, sale, or hire of machinery, industrial plant, control equipment for the improvement of quality of air, or
has so abused in the opinion of the State Government his position as a member as to render his continuance or the State Board detrimental to the interest of the general public.

The State Government shall, by order in writing remove any member who is or has become subject to any disqualification mentioned above.

Q6. What are the time duration for the meetings of Board? Discuss the constitution of committees.

Ans- 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 and if 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.

Copies of the minutes of the meetings shall be forwarded to the Central Board and to the State Government concerned.

Constitution of committees:

A board may consists as many committees consisting wholly or partly of members and partly of other persons.
A committee constituted shall meet at such time at such place, and shall observe such rules of procedure in regard to the transaction of business at its meetings.
The members of a committee other than the members of board shall be paid such fees and allowances, for attending its meeting.

Q7. Does State Government has the power to declare air pollution control areas?

Ans- Yes, State Government after the consultation with the State Board can declare any area as air pollution control area. 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.
after consultation with the State Board, by notification in the Official Gazette, -

(a) after 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 of any part or parts thereof.

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 months from the date of publication of the notification) as may be specified in the notification.
after consultation with the State Board, 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.
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.

Q8. What power of entry and inspection has been given to a person empowered by a State Board?

Ans- Any person empowered by a State Board shall have a right to enter, at all reasonable times with such assistance as he considers necessary, any place –

for the purpose of performing any of the functions of the State Board entrusted to him;
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 thereunder 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.

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.

Q9. State Board has the power to take sample of air or emission. Discuss. Also describe the report of result of analysis of samples.

Ans- Power of the State Board to take samples:

(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 suchmanner as may be prescribed.

(2) The result of any analysis of a sample of emission taken shall not be admissible in evidence in any legal proceeding unless the person taking the sample shall -

(a) serve on the occupier or his agent, a notice 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 recognized by the State Board.

(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 CI.

(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 sealed container or containers of the sample of emission as required under CI.

(c) of sub-section (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 taking the sample for analysis to the laboratory established or specified under sub-section (1) of Sec. 28

REPORT OF RESULT:

(1) Where a sample of emission has been sent for analysis to the laboratory

established or recognized by the State Board, the Board Analyst 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 one copy of the report shall be sent by the State Board to the occupier or his agent, 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) Any cost incurred in getting any sample analysed at the request of the occupier or his agent as provided in CI or when he willfully absents himself or refuses to sign the marked and sealed container or emission, shall be payable by such occupier or his agent and in case of default the same shall be recoverable from his as arrears of land revenue or of public demand.

Q10. In how much time does appeal can be constituted after order passed by State Board?

Ans- Any person aggrieved by an order made by the State Board under this Act may, within thirty days 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 the expiry of the said period of thirty days if such authority is satisfied that the appellant was prevented by sufficient cause from filling the appeal in time.

The Appellate Authority shall consist of a single person or three persons as the State Government may think fit to be appointed by the State Government.

The form and the manner in which an appeal may be preferred under sub-section (1), the fees payable for such appeal and the procedure to be followed by the Appellate Authority shall be such as may be prescribed.

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.

Q11. What are the borrowing powers of Boards?

Ans- 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.

Q12. What are the penalty for contravention of the provision of the AIR act, 1981?

Ans- Whoever contravenes any of the provisions of this Act or any order or directions 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.

Q13. Whether the Chairman or Deputy Chairman can be prosecuted under sec. 40 for the offence committed by the company?

Ans- A bare reading of this provision shows that every person who at the time the offence was committed, was directly, in charge of and responsible to the company for the conduct of the business of the company, would also be liable to be punished for the said offence. The words “directly incharge of” are significant in this regard and exclude persons who are indirectly responsible for the business of the company. It is, therefore, possible to hold that the Chairman and Deputy Chairman of the Company by virtue of office held by them cannot be prosecuted for offences committed by the company as they are not the persons directly in charge of, and responsible to the company as they are not the persons directly in charge of, and responsible to the company for the conduct of the business of the company. It is, therefore, possible to hold that the Chairman and Deputy Chairman of the Company by virtue of office held by them cannot be prosecuted for offences committed by the company as they are not the persons directly in charge of, and responsible to the company for the conduct of its business as required under Sec. 40 of the Act. The broad language of Sec. 482 of the Code of Criminal Procedure, would also justify that view and suggest that High Court has all the powers to prevent misuse of the process of the Court or secure ends of justice. Prosecution of Chairman and Deputy. Chairman quashed in exercise of the powers under Sec. 482 of the Code of Criminal Procedure.

Q14. What can be concluded by AIR (Prevention and Control of pollution) act, 1981?

Ans- It is a comprehensive legislation with more than fifty sections. It makes provisions, interalia, for central and state boards, power to declare pollution control areas, restrictions on certain industrial units, authority of the boards to limit emission of air pollutants, power of entry, inspection, taking samples and analysis, penalties, etc.

The act specifically empowers State Government to designate air pollution areas and to prescribe the type of fuel to be used in these designated areas. According to this act, no person can operate certain types of industries including the cement, fertilizer and petroleum industries without consent of the State Board.

The main object of the board is to provide for the prevention, control and abatement of air pollution.

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