Question of Law. Need for intervention in deletion of Section 41 (A) 5 of the Factory Act 1948 as being in contradiction to the provisions of the Water Act 1974 and the Air Act 1981.
By Dr. Yashpal Singh
One of the provisions of the Factories Act 1948 stipulates exempting the requirement of approvals from the Pollution Control Boards in case an approval from the State Government has been obtained under the Factories Act. This has far reached consequences on the implementation of the Water (Prevention and Control of Pollution Act )1974, the Air (Prevention and Control of Pollution Act)1981 and the Environment (Protection) Act 1986 and needs to be deleted in Public Interest. The Ministry may be pleased to take necessary action in this regard.
Section 41A of the Factories Act 1948 provides for the constitution of a Site Appraisal Committee to advise the State Government to consider applications for grant of permissions for the initial location of a factory involving a hazardous process. The site appraisal committee is required to examine the application for the establishment of a factory involving hazardous processes and make its recommendation to the State Government for a final consideration. Section 41A (5) further provides that, ‘Where the State Government has granted approval to an application for the establishment or expansion of a factory involving a hazardous process, it shall not be necessary for an applicant to obtain a further approval from the Central Board or the State Board established under the Water (Prevention and Control of Pollution) Act 1974 (6 of 1974) and the Air (Prevention and Control of Pollution) Act 1981 (14 of 1981).’ Relevant provisions of Section 41 A are being reproduced below for ease of reference.
Provisions Relating to Hazardous Processes 41a.
Constitution of Site Appraisal Committee.
(1) The State Government may, for purposes of advising it to consider applications for grant of permission for the initial location of a factory involving a hazardous process or for the expansion of any such factory, appoint a Site Appraisal Committee consisting of— (a) the Chief Inspector of the State who shall be its Chairman; (b) a representative of the Central Board for the Prevention and Control of Water Pollution appointed by the Central Government under section 3 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974); (c) a representative of the Central Board for the Prevention and Control of Air Pollution referred to in section 3 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981); (d) a representative of the State Board appointed under section 4 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974); (e) a representative of the State Board for the Prevention and Control of Air Pollution referred to in section 5 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981); (f) a representative of the Department of Environment in the State; (g) a representative of the Meteorological Department of the Government of India; (h) an expert in the field of occupational health; and (i) a representative of the Town Planning Department of the State Government, and not more than five other members who may be co-opted by the State Government who shall be— (i) a scientist having specialised knowledge of the hazardous process which will be involved in the factory, (ii) a representative of the local authority within whose jurisdiction the factory is to be established, and (iii) not more than three other persons as deemed fit by the State Government.
(2) The Site Appraisal Committee shall examine an application for the establishment of a factory involving hazardous process and make its recommendation to the State Government within a period of ninety days of the receipt of such application in the prescribed form.
(3) Where any process relates to a factory owned or controlled by the Central Government or to a corporation or a company owned or controlled by the Central Government, the State Government shall co-opt in the Site Appraisal Committee a representative nominated by the Central Government as a member of that Committee.
(4) The Site Appraisal Committee shall have power to call for any information from the person making an application for the establishment or expansion of a factory involving a hazardous process.
(5) Where the State Government has granted approval to an application for the establishment or expansion of a factory involving a hazardous process, it shall not be necessary for an applicant to obtain a further approval from the Central Board or the State Board established under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) and the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981).
The Boards constituted under the Air and Water Acts are also involved in granting approvals/registration under the various provisions of the E.P. Act 1986 including the handling of hazardous substances.
It is felt that this provision of section 41(5) of the Factories Act is contradictory to the fundamental provisions of the Water (Prevention and Control of Pollution) Act 1974, the Air (Prevention and Control of Pollution) Act 1981 and the Environment Protection Act 1986. Since the provisions of the Factories Act, 1948 as above have included exempted ‘further Approval’ from the State Boards constituted under the Air and Water Acts, it would influence all approvals being granted under the Water (Prevention and Control of Pollution) Act 1974, the Air (Prevention and Control of Pollution) Act 1981 and the Environment Protection Act 1986 by the said Boards.
In view of the importance and mandatory requirements of approvals granted by the Boards created under the Water Act 1974 and Air Act 1981 the matter needs to be examined and resolved by deleting section 41(A)5 of the Factories Act and enabling independent appraisals under the Factories Act and from the Boards created under the Water and Air acts under the mandates provided to them.