Need for guidelines on appropriate Appellate Authorities in case a combined order is issued for directions under section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31 A of the Air (Prevention and Control of Pollution) Act 1981 and for directions under section 31A of the Air Act, if passed, by the CPCB.
It has often been observed that directions under sections 33A of the Water (Prevention and Control of Pollution) Act, 1974 and section 31A of the Air (Prevention and Control of Pollution) Act 1981 are issued by the authorized regulatory bodies through a common order.
Without mentioning specific references, one such order issued by a Regional Officer of a State Pollution Control Board reads as, “Now Therefore, in exercise of power conferred upon me under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and under section 31A of the Air (Prevention and Control of Pollution) Act 1981, I, (Name)———————————I/c Regional Officer hereby direct you to close down your manufacturing activity forth with. The competent authorities are directed to disconnect electricity and water supply of your Hotel/Marriage Hall.”
The issuance of a common order under section 33A of the Water Act 1974 and Section 31A of the Air Act, 1981, by the Regulatory Authorities creates a situation of dilemma before the aggrieved parties because of different appellate authorities provided as per law for both the directions and it needs to be understood as to who would be the Appellate Authority in case a single order is issued and also as to who will be the Appellate Authority in case an order under section 31A is issued by the Central Pollution Control Board or any other authority other than the State Board.
In this connection attention may be drawn to the following.
- Appeals against Directions under Section 33A of the Water Act 1974
Section 28 of the Water (Prevention and Control of Pollution) Act 1974 creates an Appellate Authority for preferring Appeals filed against orders issued by the State Board under sections 25/26 or section 27 of the Act. There is no provision of Appeal in Section 28 for directions issued under section 33A of the Water Act and appeals against directions issued under section 33 A can be preferred at the NGT as per provisions of section 16 (C) of the NGT Act and Section 33 B of the Water Act. The important provisions have been reproduced below for convenience.
A. Section 33A Power to give directions.—“Notwithstanding anything contained in any other law, but 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 the power to issue directions under this section includes the power to direct—
- the closure, prohibition or regulation of any industry, operation or process; or
- the stoppage or regulation of supply of electricity, water or any other service.]”
B. Section 28(1) of the Water Act – “Any person aggrieved by an order made by the State Board under section 25, section 26 or section 27 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 filing the appeal in time appeal in time”.
C. Section 33(B) of the Water Act [33B. Appeal to National Green Tribunal]. —Any person aggrieved by, —
(a) an order or decision of the appellate authority under section 28, made on or after the commencement of the National Green Tribunal Act, 2010; or
(b) an order passed by the State Government under section 29, on or after the commencement of the National Green Tribunal Act, 2010; or
(c) directions issued under section 33A by a Board, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.]
- D. Section 16(C) of the NGT Act 2010- Any person aggrieved by, (c) directions issued on or after the commencement of the National Green Tribunal Act, 2010 by a Board under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974. And “———may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:
Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days.”
Both these provisions [33B of the Water act 1974 and Section 16(C) of the NGT (Act)2010 specifically provide for appeals under section 33A of the Water Act 1974 to be preferred at the NGT.
- Appeals against Directions under Section 31A of the Air Act 1981
The Air Act 1981 on the other hand widens the scope of the Appellate Authority constituted under Section 31 of the Air Act, 1981 and empowers it to consider appeals against any orders passed by the State Boards under the Act. Appeals on direction passed by the State Board under section 31A of the Air Act, 1981 are therefore maintainable at the Appellate Authority constituted under the Air Act and not at the NGT. Orders of the appellate Authority under the Air Act can however be appealed at the NGT. The important provisions have been reproduced below for convenience.
A. Section 31A-Air Act Power to give directions — Notwithstanding anything contained in any other law, but 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 the power to issue directions under this section includes the power to direct—
- the closure, prohibition or regulation of any industry, operation or process; or
- the stoppage or regulation of supply of electricity, water or any other service.]
B. Section 31 Air Act -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.
C. Section 31 (B) of the Air Act [31B. Appeal to National Green Tribunal. – Any person aggrieved by an order or decision of the Appellate Authority under section 31, made on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.]
In view of a provision of separate Appellate Authorities for directions issued by the Boards under Section 33A of the Water (Act) 1974 and by the State Boards under section 31A of the Air Act, 1981 it is not clear as to which body would entertain appeals against joint orders passed under both provisions. There may therefore be need to examine the issue and issue necessary clarifications/guidelines in this regard.
- Appeals against Directions under Section 31A of the Air Act 1981 if issued by the Central Pollution Control Board.
Another issue of importance is that the directions under section 33A of the Water Act 1974 can be passed by any Board (Irrespective of being the CPCB or the SPCB) and can be appealed by the aggrieved parties at the National Green Tribunal as provided under Section 33B of the Water Act as below.
On the other hand, while directions under section 31A can be given by any Board (Irrespective of CPCB or State) appeals under Section 31 of the Air Act can be filed by only the State Boards as below.
A. Section 31 Air Act -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.
There may therefore, also, be a need to examine as to where should an appeal be filed if a direction is passed by the Central Board under section 31A of the Air Act in areas other than a Union Territory.
The CCPB may like to examine and issue guidelines on the following.
- The procedures to be followed in case a combined order is issued by the CPCB/SPCB/UTPPC under sections 33A of the Water Act and Section 31A of Air Act.
- The appropriate Appellate Authority in case a common order communicating directions under section 33A of the Water Act and 31A of the Air Act is issued by any Board.
- The appropriate appellate Authority in case an order under section 31A of the Air Act 1981 is issued by the Central Pollution Control Board or any other duly empowered authority other than the State Board.