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Protection of Plant Varieties and Farmers Rights Act, 2001

53 of 2001

The following Act of Parliament received the assent of the President on October 30, 2001 and was published in the Gazette of India, Extraordinary, Part II, Section 1, dated October 30, 2001.

An Act to provide for the establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants.

Whereas it is considered necessary to recognize and protect the rights of the farmers in respect of their contribution made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties; And whereas for accelerated agricultural development in the country, it is necessary to protect plant breeders’ rights to stimulate investment for research and development, both in the public and private sector, for the development of new plant varieties; And whereas such protection will facilitate the growth of the seed industry in the country which will ensure the availability of high quality seeds and planting material to the farmers; And whereas, to give effect to the aforesaid objectives, it is necessary to undertake measures for the protection of the rights of farmers and plant breeders: And whereas, to give effect to the aforesaid objectives, it is necessary to undertake measures for the protection of the rights of farmers and plant breeders; And whereas India, having ratified the Agreement on Trade Related Aspects of Intellectual Property Rights should, inter alia, make provision for giving effect to sub- paragraph (b) of Paragraph 3 of Article 27 in Part II of the said agreement relating to protection of plant varieties.

Be it enacted by Parliament in the Fifty-second Year of the Republic of India as follows:-

Section 1. Short title, extent and commencement

(1) This Act may be called the Protection of Plant Varieties and Farmers’ Rights Act, 2001.

(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 any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

Section 2. Definitions

In this Act, unless the context otherwise requires,-

(a) “Authority” means the Protection of Plant Varieties and Farmers’ Rights Authority established under sub-section (1) of Section 3;

(b) “benefit sharing”, in relation to a variety, means such proportion of the benefit accruing to a breeder of such variety or such proportion of the benefit accruing to the breeder from an agent or a licensee of such variety, as the case may be, for which a claimant shall be entitled as determined by the Authority under Section 26;

(c) “breeder” means a person or group of persons or a fanner or group of farmers or any institution which has bred, evolved or developed any variety;

(d) “Chairman” means the Chairman of the Tribunal;

(e) “Chairperson” means the Chairperson of the Authority appointed under clause(a) of sub-section (5) of Section 3;

(f) “convention country” means a country which has acceded to an international convention for the protection of plant varieties to which India has also acceded, or a country which has a law on protection of plant varieties on the basis of which India has entered into an agreement for granting plant breeders’ right to the citizens of both the countries;

(g) “denomination”, in relation to a variety or its propagating material or essentially derived variety or its propagating material, means the denomination of such variety or its propagating material or essentially derived variety or its propagating material, as the case may be, expressed by means of letters or a combination of letters and figures written in any language;

(h) “essential characteristics” means such heritable traits of a plant variety which are determined by the expression of one or more genes of other heritable determinants that contribute to the principal features, performance or value of the plant variety;

(i) “essentially derived variety”, in respect of a variety (the initial variety), shall be said to be essentially derived from such initial variety when it-

(i) is predominantly derived from such initial variety, or from a variety that itself is predominantly derived from such initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of such initial variety;

(ii) is clearly distinguishable from such initial variety; and

(iii) conforms (except for the different which result from the act of derivation) to such initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of such initial variety;

(j) “extant variety” means a variety available in India which is-

(i) notified under Section 5 of the Seeds Act, 1966 (54 of 1966); or

(ii) farmers’ variety; or

(iii) a variety about which there is common knowledge; or

(iv) any other variety which is in public domain;

(k) “farmer” means any person who-

(i) cultivates crops by cultivating the land himself; or

(ii) cultivates crops by directly supervising the cultivation of land through any other person; or

(iii) conserves and preserves, severally or jointly, with any other person any wild species or traditional varieties or adds value to such wild species or traditional varieties through selection and identification of their useful properties;

(l) “farmers’ variety” means a variety which-

(i) has been traditionally cultivated and evolved by the farmers in their fields; or

(ii) is a wild relative or land race of a variety about which the farmers possess the common knowledge;

(m) “gene Fund” means the National Gene Fund constituted under sub-section (1)of section 45;

(n) “Judicial Member” means a Member of the Tribunal appointed as such under sub-section (1) of Section 55 and includes the Chairman;

(o) “Member” means a Judicial Member or a Technical Member of the Tribunal and includes the Chairman;

(p) “member” means a member of the Authority appointed under clause (b) of sub-section (5) of Section 3 and includes the member-Secretary;

(q) “prescribed” means prescribed by rules made under this Act;

(r) “propagating material” means any plant or its component or part thereof including an intended seed or seed which is capable of, or suitable for, regeneration into a plant;

(s) “Register” means the National Register of Plant Varieties referred to in Section13;

(t) “Registrar” means the Registrar of Plant Varieties appointed under sub-section(4) of Section 12 and includes the Registrar-General;

(u) “Registrar-General” means the Registrar-General of Plant Varieties appointed under sub-section (3) of Section 12;

(v) “Registry” means the Plant Varieties Registry referred to in sub-section (1) of section 12;

(w) “regulations” means the regulations made by the Authority under this Act;

(x) “seed” means a type of living embryo or propagule capable of regeneration and giving rise to a plant which is true to such type;

(y) “Tribunal” means the Plant Varieties Protection Appellate Tribunal established under Section 54;

(z) “Technical Member” means a Member of the Tribunal who is not a Judicial Member;

(za) “variety” means a plant grouping except micro-organism within a single botanical tax on of the lowest known rank, which can be-

(i) defined by the expression of the characteristics resulting from a given genotype of that plant grouping;

(ii) distinguished from any other plant grouping by expression of at least one of the said characteristics; and

(iii) considered as a unit with regard to its suitability for being propagated, which remains unchanged after such propagation,

and includes propagating material of such variety, extant variety, transgenic variety, farmers’ variety and essentially derived variety.

Section 3. Establishment of Authority

(1) The Central Government shall, by notification in the Official Gazette, establish an Authority to be known as the Protection of Plant Varieties and Farmers’ Rights Authority for the purposes of this Act.

(2) The Authority shall be a body corporate by the name aforesaid, having perpetual succession and a common seal with power to acquire, hold and dispose of properties, both movable and immovable, and to contract, and shall by the said name sue and be sued.

(3) The head office of the Authority shall be at such place as the Central Government may, by notification in the Official Gazette, specify and the Authority may, with the previous approval of the Central Government, establish branch offices at other places in India.

(4) The Authority shall consist of a Chairperson and fifteen members.

(5)

(a) The Chairperson, to be appointed by the Central Government, shall be a person of outstanding caliber and eminence, with long practical experience to the satisfaction of that Government especially in the field of plant varietal research or agricultural development.

(b) The members of the Authority, to be appointed by the Central Government, shall be as follows, namely:-

(i) the Agriculture Commissioner, Government of India, Department of Agriculture and Cooperation, New Delhi, ex officio;

(ii) the Deputy Director General in charge of Crop Sciences, Indian Council of Agriculture Research, New Delhi, ex officio;

(iii) the Joint Secretary in charge of Seeds, Government of India, Department of Agriculture and Cooperation, New Delhi, ex officio;

(iv) the Horticulture Commissioner, Government of India, Department of Agriculture and Cooperation, New Delhi, ex officio;

(v) the Director, National Bureau of Plant Genetic Resources, New Delhi, ex officio;

(vi) one member not below the rank of Joint Secretary to the Government of India to represent the Department of Bio-technology, Government of India, ex officio;

(vii) one member not below the rank of Joint Secretary to the Government of India to represent the Ministry of Environment and Forests, Government of India, ex officio;

(viii) one member not below the rank of Joint Secretary to the Government of India to represent the Ministry of Law, Justice and Company Affairs, Government of India, ex officio;

(ix) one representative from a National or State level fanners’ organization to be nominated by the Central Government;

(x) one representative from a tribal organization to be nominated by the Central Government;

(xi) one representative from the seed industry to be nominated by the Central Government;

(xii) one representative from an Agricultural University to be nominated by the Central Government;

(xiii) one representative from a National or State level women’s organisation associated with agricultural activities to be nominated by the Central Government; and

(xiv) two representatives of State Governments on rotation basis to be nominated by the Central Government.

(c) The Registrar-General shall be the ex officio member-Secretary of the Authority.

(6) The term of office of the Chairperson and the manner of filling the post shall be such as may be prescribed.

(7) The Chairperson shall appoint a Standing Committee consisting of five members, one of whom shall be a member who is a representative from a farmers’ organisation, to advise the Authority on all issues including farmers’ rights.

(8) The Chairperson shall be entitled to such salary and allowances and shall be subject to such conditions of service in respect of leave, pension, provident fund and other matter as may be prescribed. The allowances for non-official members for attending the meetings of the Authority shall be such as may be prescribed.

(9) The Chairperson may resign his office by giving notice thereof in writing to the Central Government and on such resignation being accepted, he shall be deemed to have vacated his office.

(10) On the resignation of the Chairperson or on the vacation of the office of the Chairperson for any reason, the Central Government may appoint one of the members to officiate as Chairperson till a regular Chairperson is appointed in accordance with clause (a) of sub-section (5).

Section 4. Meeting of Authority

(1) The Authority shall meet at such time and place and shall observe such rules of procedure in regard to the transaction of business at its meetings including the quorum at its meetings and the transaction of business of its Standing Committee appointed under sub-section (7) of Section 3 as may be prescribed.

(2) The Chairperson of the Authority shall preside at the meetings of the Authority.

(3) If, for any reason the Chairperson is unable to attend any meeting of the Authority, any member of the Authority chosen by the members present shall preside at the meeting.

(4) All questions which come before any meeting of the Authority shall be decided by a majority of the votes of the members of the Authority present and voting and in the event of equality of votes, the Chairperson of the Authority or in his absence, the person presiding shall have and exercise a second or casting vote.

(5) Every member who is in any way, whether directly, indirectly or personally, concerned or interested in a matter to be decided at the meeting shall disclose the nature of his concern or interest and after such disclosure, the member, concerned or interested, shall not attend that meeting.

(6) No act or proceeding of the Authority shall be invalid merely by reason of-

(a) any vacancy in, or any defect in the constitution of, the Authority; or

(b) any defect in the appointment of a person acting as the Chairperson or a member of the Authority; or

(c) any irregularity in the procedure of the Authority not affecting the merits of the case.

Section 5. Committees of Authority

(1) The Authority may appoint such committees as may be necessary for the efficient discharge of its duties and performance of its functions under this act.

(2) The persons appointed as members of the committee under sub-section (1)shall be entitled to receive such allowances or fees for attending the meetings of the committee as may be fixed by the Central Government.

Section 6. Officers and other employees of the Authority

Subject to such control and restriction as may be prescribed, the Authority may appoint such officers and other employees as may be necessary for the efficient performance of its functions and the method of appointment, the salary and allowances and other conditions of service of such other officers and employees of the Authority shall be such as may be prescribed.

Section 7. Chairperson to be Chief Executive

The Chairperson shall be the Chie Executive of the Authority and shall exercise such powers and perform such duties as may be prescribed.

Section 8. General functions of Authority

(1) It shall be the duty of the Authority to promote, by such measures as it thinks fit, the encouragement for the development of new varieties of plants and to protect the rights of the farmers and breeders.

(2) In particular, and without prejudice to the generality of the foregoing provisions, the measures referred to in sub-section (1) may provide for-

(a) the registration of extant varieties subject to such terms and conditions and in the manner as may be prescribed;

(b) developing characterisation and documentation of varieties registered under this Act;

(c) documentation, indexing and cataloguing of farmers’ varieties;

(d) compulsory cataloguing facilities for all varieties of plants;

(e) ensuing that seeds of the varieties registered under this Act are available to the farmers and providing for compulsory licensing of such varieties if the breeder of such varieties or any other person entitled to produce such variety under this Act does not arrange for production and sale of the seed in the manner as may be prescribed;

(f) collecting statistic with regard to plant varieties, including the contribution of any person at any time in the evolution or development of any plant variety, in India or in any other country, for compilation and publication;

(g) ensuing the maintenance of the Register.

Section 9. Authentication of orders, etc. of Authority

All orders and decisions of the Authority shall be authenticated by the signature of the Chairperson or any other member authorised by the Authority in this behalf.

Section 10. Delegation

The Authority may, by general or special order in writing, delegate to the Chairperson, any member or officer of the Authority subject to such conditions or limitations, if any, as may be specified in the order, such of its powers and functions (except the power to make regulations under Section 95) under this Act as it may deem necessary.

Section 11. Power of Authority

In all proceedings under this Act before the Authority or the Registrar,-

(a) the Authority or the Registrar, as the case may be, shall have all the powers of a civil court for the purposes of receiving evidence, administering oaths, enforcing the attendance of witnesses, compelling the discovery and production of documents and issuing commissions for the examination of witnesses;

(b) the Authority or the Registrar may, subject to any rule made in this behalf under this Act, make such orders as to costs as it considers reasonable and any such order shall be executable as a decree of a civil court.

Section 12. Registry and offices thereof

(1) The Central Government shall establish, for the purposes of this Act, a Registry which shall be known as the Plant Varieties Registry.

(2) The head office of the Plant Varieties Registry shall be located in the head office of the Authority, and for the purpose of facilitating the registration of varieties, there may be established, at such place, as the Authority may think fit, branch offices of the Registry.

(3) The Authority shall appoint a Registrar-General of Plant Varieties who shall be entitled to such salary and allowances and shall be subject to such conditions of service in respect of leave, pension, provident fund and such other matters as may be prescribed.

(4) The Authority may appoint such number of Registrar as it thinks necessary for registration for plant varieties under the superintendence and direction of the Registrar-General under this Act and may make regulations with respect to their duties and jurisdiction.

(5) The term of office and the conditions of service of the Registrar shall be such as may be provided by regulations.

(6) The Authority may, by notification in the Official Gazette, define the territorial limits within which a branch office of the Registry may exercise its functions.

(7) There shall be a seal of the Plant Varieties Registry.

Section 13. National Register of Plant Varieties

(1) For the purposes of this Act, a Register called the National Register of Plant Varieties shall be kept at the head office of the Registry, wherein shall be entered the names of all the registered plant varieties with the names and addresses of their respective breeders, the right of such breeders in respect of the registered varieties, the particulars of the denomination of each registered variety, its seed or other propagating material along with specification of salient feature thereof and such other matters as may be prescribed.

(2) Subject to the superintendence and direction of the Central Government, the Register shall be kept under the control and management of the Authority.

(3) There shall be kept at each office of the Registry a copy of the Register and such other documents as the Central Government may, by notification in the Official Gazette, direct.

Section 14. Application for registration

Any person specified in Section 16 may make an application to the Registrar for registration of any variety –

(a) of such genera and species as specified under sub-section (2) of Section 29; or

(b) which is an extant variety; or

(c) which is a farmers’ variety

Section 15. Registrable varieties

(1) A new variety shall be registered under this Act if it conforms to the criteria of novelty, distinctiveness, uniformity and stability.

(2) Notwithstanding anything contained in sub-section (1), and extant variety shall be registered under this Act within a specified period if it conforms to such criteria of distinctiveness, uniformity and stability as shall be specified under the regulations.

(3) For the purposes of sub-sections (1) and (2), as the case may be, a new variety shall be deemed to be-

(a) novel, if, at the date of filing of the application for registration for protection, the propagating or harvested material of such variety has not been sold or otherwise disposed of by or with the consent of its breeder or his successor for the purposes of exploitation of such variety-

(i) in India, earlier than one year; or

(ii) outside India, in the case of trees or vines earlier than six years, or in any other case, earlier than four years, before the date of filing such application :

Provided that a trial of a new variety which has not been sold or otherwise disposed of shall not affect the right to protection:

Provided further that the fact that on the date of filing the application for registration, the propagating or harvested material of such variety has become a matter of common knowledge other than through the aforesaid manner shall not affect the criteria of novelty of such variety;

(b) distinct, if it is clearly distinguishable by at least one essential characteristics from any other variety whose existence is a matter of common knowledge in any country at the time of filing of the application.

Explanation. – For the removal of doubts, it is hereby declared that the filing of an application for the granting of a breeder’s right to a new variety or for entering such variety in the official register of varieties in any convention country shall be deemed to render that variety a matter of common knowledge from the date of the application in case the application leads to the granting of the breeder’s right or to the entry of such variety in such official register, as the case may be;

(c) uniform, if subject to the variation that may be expected from the particular features of its propagation it is sufficiently uniform in its essential characteristics;

(d) stable, if its essential characteristics remain unchanged after repeated propagation or, in the case of particular cycle of propagation, at the end of each such cycle.

(4) A new variety shall not be registered under this Act if the denomination given to such variety-

(i) is not capable of identifying such variety; or

(ii) consists solely of figures; or

(iii) is liable to mislead or to cause confusion concerning the characteristics, value identity of such variety or the identity of breeder of such variety; or

(iv) is not different from every denomination which designates a variety of the same botanical species or of a closely related species registered under this Act; or

(v) is likely to deceive the public or cause confusion in the public regarding the identity of such variety; or

(vi) is likely to hurt the religious sentiments respectively of any class or section of the citizens of India; or

(vii) is prohibited for use as a name or emblem for any of the purposes mentioned in Section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950); or

(viii) is comprised of solely or partly of geographical name :

Provided that the Registrar may register a variety, the denomination of which comprises solely or partly of a geographical name, if he considers that the use of such denomination in respect of such variety is an honest use under the circumstances of the case.

Section 16. Persons who may make application

(1) An application for registration under Section 14 shall be made by-

(a) any person claiming to be the breeder of the variety; or

(b) any successor of the breeder of the variety; or

(c) any person being the assignee of the breeder of the variety in respect of the right to make such application; or

(d) any farmer or group of farmers or community of farmers claiming to be the breeder of the variety; or

(e) any person authorised in the prescribed manner by a person specified under clause (a) to (d) to make application on his behalf; or

(f) any university or publicly funded agricultural institution claiming to be the breeder of the variety.

(2) An application under sub-section (1) may be made by any of the persons referred to therein individually or jointly with any other person.

Section 17. Compulsory variety denomination

(1) Every applicant shall assign a single and distinct denomination to a variety with respect to which he is seeking registration under this Act in accordance with the regulations.

(2) The Authority shall, having regard to the provisions of any international convention or treaty to which India has become a party, make regulations governing the assignment of denomination to a variety.

(3) Where the denomination assigned to the variety does not satisfy the requirement specified in the regulations, the Registrar may require the applicant to propose another denomination within such time as may be specified by such regulations.

(4) Notwithstanding anything contained in the Trade .Marks Act, 1999 (47 of 1999) denomination assigned to a variety shall not be registered as a trade mark under that Act.

Section 18. Form of application

(1) Every application for registration under Section 14shall-

(a) be with respect to a variety;

(b) state the denomination assigned to such variety by the applicant;

(c) be accompanied by an affidavit sworn by the applicant that such variety does not contain any gene or gene sequence involving terminator technology;

(d) be in such form as may be specified by regulations;

(e) contain a complete passport data of the parental lines from which the variety has been derived along with the geographical location in India from where the genetic material has been taken and all such information relating to the contribution, if any, of any farmer, village community, institution or organisation in breeding, evolving or developing the variety;

(f) be accompanied by a statement containing a brief description of the variety bringing out its characteristics of novelty, distinctiveness, uniformity and stability as required for registration;

(g) be accompanied by such fees as may be prescribed;

(h) contain a declaration that the genetic material or parental material acquired for breeding, evolving or developing the variety has been lawfully acquired; and

(i) be accompanied by such other particulars as may be prescribed:

Provided that in case where the application is for the registration of farmers’ variety, nothing contained in clauses (b) to (i) shall apply in respect of the application and the application shall be in such form as may be prescribed.

(2) Every application referred to in sub-section (1) shall be filed in the office of the Registrar.

(3) Where such application is made by virtue of a succession or an assignment of the right to apply for registration, there shall be furnished at the time of making the application, or within such period after making the application as may be prescribed, a proof of the right to make the application.

Section 19. Test to be conducted

(1) Every applicant shall, along with the application for registration made under this Act, make available to the Registrar such quantity of seed of a variety for registration of which such application is made, for the purpose of conducting tests to evaluate whether seed of such variety along with the parental material conform to the standards as may be specified by regulations :

Provided that the Registrar or any person or test center to whom such seed has been sent for conducting test shall keep such seed during his or its possession in such manner and in such condition that its viability and quantity shall remain unaltered.

(2) The applicant shall deposit such fees as may be prescribed for conducting tests referred to in sub-section (1).

(3) The tests, referred to in sub-section (1) shall be conducted in such manner and by such method as may be prescribed.

Section 20. Acceptance of application or amendment thereof

(1) On receipt of an application under Section 14, the Registrar may, after making such inquiry as he thinks fit with respect to the particulars contained in such application, accept the application absolutely or subject to such conditions or limitations as he deems fit.

(2) Where the Registrar is satisfied that the application does not comply with the requirements of this Act or any rules or regulations made thereunder, he may, either-

(a) require the applicant to amend the application to his satisfaction; or

(b) reject the application :

Provided that no application shall be rejected unless the applicant has been given a reasonable opportunity of presenting his case.

Section 21. Advertisement of application

(1) Where an application for registration of a variety has been accepted absolutely or subject to conditions or limitations under sub-section (1) of Section 20, the Registrar shall, as soon as after its acceptance, cause such application together with the conditions or limitations, if any, subject to which it has been accepted and the specifications of the variety for registration of which such application is made including its photographs or drawings, to be advertised in the prescribed manner calling objections from the persons interested in the matter.

(2) Any person may, within three months from the date of the advertisement of an application for registration on payment of the prescribed fees, give notice in writing in the prescribed manner, to the Registrar of his opposition to the registration.

(3) Opposition to the registration under sub-section (2) may be made on any of the following grounds, namely:-

(a) that the person opposing the application is entitled to the breeder’s right as against the applicant; or

(b) that the variety is not registrable under this Act; or

(c) that the grant of certificate of registration may not be in public interest; or

(d) that the variety may have adverse effect on the environment.

(4) The Registrar shall serve a copy of the notice of opposition on the applicant for registration and, within two months form the receipt by the applicant of such copy of the notice of opposition, the applicant shall send to the Registrar in the prescribed manner a counter-statement of the grounds on which he relies for his application, and if he does not do so, he shall be deemed to have abandoned his application.

(5) If the applicant sends such counter-statement, the Registrar shall serve a copy thereof on the person giving notice of opposition.

(6) Any evidence upon which the opponent and the applicant may rely shall be submitted, in the manner prescribed and within the time prescribed, to the Registrar and the Registrar shall give an opportunity to them to be heard, if so desired.

(7) The Registrar shall, after hearing the parties, if so required, and considering the evidence, decide whether and subject to what conditions or limitations, if any, the registration is to be permitted and may take into account a ground of objection whether relied upon by the opponent or not.

(8) Where a person giving notice of opposition or an applicant sending a counter-statement after receipt of a copy of such notice neither resides not carries on business in India, the Registrar may require him to give security for the cost of proceeding before him and in default of such security being duly given may treat the opposition or application, as the case may be, as abandoned.

(9) The Registrar may, on request, permit correction of any error in, or any amendment of, a notice of opposition or a counter-statement on such terms as he may think fit.

Section 22. Registrar to consider grounds of opposition

The Registrar shall consider all the grounds on which the application has been opposed and after giving reasons for his decision, by order, uphold or reject the opposition.

Section 23. Registration of essentially derived variety

(1) An application for the registration of an essentially derived variety of the genera or species specified under sub-section (2) of Section 29 by the Central Government shall be made to the Registrar by or on behalf of any person referred to in Section 14 and in the manner specified in Section 18 as if for the word “variety”, the words “essentially derived variety” have been substituted therein and shall be accompanied by such documents and fees as maybe prescribed.

(2) When the Registrar is satisfied that the requirements of sub-section (1) have been complied with to his satisfaction, he shall forward the application with his report and all the relevant documents to the Authority.

(3) On receipt of an application under sub-section (2), the Authority shall get examined such essentially derived variety to determine as to whether the essentially derived variety is a variety derived from the initial variety by conducting such tests and following such procedure as may be prescribed.

(4) When the Authority is satisfied on the report of the test referred to in sub-section (3) that the essentially derived variety has been derived from the initial variety, it may direct the Registrar to register such essentially derived variety and the Registrar shall comply with the direction of the Authority.

(5) Where the Authority is not satisfied on the report of the test referred to in sub-section (3) that the essentially derived variety has been derived from the initial variety it shall refuse the application.

(6) The rights of the breeder of a variety contained in Section 28 shall apply to the breeder of essentially derived variety:

Provided that the authorisation by the breeder of the initial variety to the breeder of essentially derived variety under sub-section (2) of Section 28 may be subject to such terms and conditions as both the parties may mutually agree upon.

(7) An essentially derived variety shall not be registered under this section unless it satisfied the requirements of Section 15 as if for the word “variety”, the words” essentially derived variety” have been substituted therein.

(8) When an essentially derived variety has been registered by the Registrar incompliance with the direction of the Authority under sub-section (4), the Registrar shall issue to the applicant a certificate of registration in the prescribed form and sealed with the seal of the Registry and send a copy thereof to the Authority and to such other authority, as may be prescribed, for information.

Section 24. Issue of certificate of registration

(1) When an application for registration of a variety (other than an essentially derived variety) has been accepted and either-

(a) the application has not been opposed and the time of notice of opposition has expired; or

(b) the application has been opposed and the opposition has been rejected, the Registrar shall register the variety.

(2) On the registration of the variety (other than an essentially derived variety), the Registrar shall issue to the applicant a certificate of registration in the prescribed form and sealed with the seal of the Registry and send a copy thereof to the Authority for determination of benefit sharing and to such other authority, as may be prescribed, for information. The maximum time required by the Registrar for issuing the certificate of registration from the date of filing of the application for registration of a variety shall be such as may be prescribed.

(3) Where registration of a variety (other than an essentially derived variety), is not completed within twelve months from the date of the application by reason of default on the part of the applicant, the Regis^ “r may, after giving notice to the applicant in the prescribed manner, treat the application as abandoned unless it is completed within the time specified in that behalf in the notice.

(4) The Registrar may amend the Register or a certificate of registration for the purpose of correcting a clerical error or an obvious mistake.

(5) The Registrar shall have power to issue such direction to protect the interest of a breeder against any abusive act committed by any third party during the period between filing of application for registration and decision taken by the Authority on such application.

(6) The certificate of registration issued under this section or sub-section (8) of Section 23 shall be valid for nine years in the case of trees and vines and six years in the case of other crops and may be reviewed and renewed for the remaining period on payment of such fees as may be fixed by the rules made in this behalf subject to the condition that the total period of validity shall not exceed-

(i) in the case of trees and vines, eighteen years from the date of registration of the variety;

(ii) in the case of extant variety, fifteen years from the date of the notification of that variety by the Central Government under Section 5 of the Seeds Act, 1966 (54 of 1966); and

(iii) in other cases, fifteen years from the date of registration of the variety.

Section 25. Publication of list of varieties

The Authority shall, within such intervals as it thinks appropriate, publish the list of varieties which have been registered during that interval.

Section 26. Determination of benefit sharing by Authority

(1) On receipt of copy of the certificate of registration under sub-section (8) of Section 23 or sub-section (2) of Section 24, the Authority shall publish such contents of the certificate and invite claims of benefit sharing to the variety registered under such certificate in the manner as maybe prescribed.

(2) On invitation of the claims under sub-section (1), any person or group of persons or firm or government or non-governmental organisation shall submit its claim of benefit sharing to such variety in the prescribed form within such period, and accompanied with such fees, as may be prescribed :

Provided that such claim shall only be submitted by any-

(i) person or group of persons, if such person or every person constituting such group is a citizen of India; or

(ii) firm or governmental or non-governmental organisation, if such firm or organisation is fanned or established in India.

(3) On receiving a claim under sub-section (2), the Authority shall send a copy of such claim to the breeder of the variety registered under such certificate and the breeder may, on receipt of such copy, submit his opposition to such claim within such period and in such manner as may be prescribed.

(4) The Authority shall, after giving an opportunity of being heard to the parties, dispose of the claim received under sub-section (2).

(5) While disposing of the claim under sub-section (4), the Authority shall explicitly indicate in its order the amount of the benefit sharing, if any, for which the claimant shall be entitled and shall take into consideration the following matters, namely:-

(a) the extent and nature of the use of genetic material of the claimant in the development of the variety relating to which the benefit sharing has been claimed;

(b) the commercial utility and demand in the market of the variety relating to which the benefit sharing has been claimed.

(6) The amount of benefit sharing to a variety determined under this section shall be deposited by the breeder of such variety in the manner referred to in clause (a) of sub-section (1) of Section 48 in the National Gene Fund.

(7) The amount of benefit sharing determined under this section shall, on a reference made by the Authority in the prescribed manner, be recoverable as an arrear of land revenue by the District Magistrate within whose local limits of jurisdiction the breeder liable for such benefit sharing resides.

Section 27. Breeder to deposit seeds or propagating material

(1) The breeder shall be required to deposit such quantity of seeds or propagating material including parentalline seeds of registered variety in the National Gene Bank as may be specified in the regulations for reproduction purpose at the breeder’s expense within such time as maybe specified in that regulation.

(2) The seeds or propagating material or parental line seeds to be deposited under sub-section (1) shall be deposited to the National Gene Bank specified by the Authority.

Section 28. Registration to confer right

(1) Subject to the other provisions of this Act, a certificate of registration for a variety issued under this Act shall confer an exclusive right on the breeder or his successor, his agent or licensee, to produce, sell, market, distribute, import or export the variety :

Provided that in the case of an extant variety, unless a breeder or his successor establishes his right, the Central Government, and in cases where such extant variety is notified for a State or for any area thereof under Section 5 of the Seeds Act, 1966 (54 of1966), the State Government, shall be deemed to be the owner of such right.

(2) A breeder may authorise any person to produce, sell, market or otherwise deal with the variety registered under this Act subject to such limitation and conditions as may be specified by regulations.

(3) Every authorisation under this Section shall be in such form as may be specified by regulations.

(4) Where an agent or a licensee referred to in sub-section (1) becomes entitled to produce, sell, market, distribute, import or export a variety, he shall apply in the prescribed manner and with the prescribed fees to the Registrar to register his title and the Registrar shall, on receipt of application and on proof of title to his satisfaction, register him as an agent or licensee, as the case may be, in respect of the variety for which he is entitled for such right, and shall cause particulars of such entitlement and conditions or restrictions, if any, subject to which such entitlement is made, to be entered in the Register :

Provided that when the validity of such entitlement is in dispute between the parties, the Registrar may refuse to register the entitlement and refer the matter in the prescribed manner to the Authority and withhold the registration of such entitlement until the right of the parties in dispute so referred to has been determined by the Authority.

(5) The Registrar shall issue a certificate of registration under sub-section (4) to the applicant after such registration and shall enter in the certificate the brief conditions of entitlement, if any, in the prescribed manner, and such certificate shall be the conclusive proof of such entitlement and the conditions or restrictions thereof, if any.

(6) Subject to any agreement subsisting between the parties, an agent or licensee of a right to a variety registered under sub-section (4) shall be entitled to call upon the breeder or his successor thereof to take proceedings to prevent infringement thereof, and if the breeder or his successor refuse or neglects to do so within three months after being so called upon, such registered agent or licensee may institute proceedings for infringement in his own name as if he were the breeder, making the breeder or his successor a defendant.

(7) Notwithstanding anything contained in any other law, a breeder or his successor so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.

(8) Nothing in this section shall confer on a registered agent or registered licensee of a variety any right to transfer such right further thereof.

(9) Without prejudice to the registration under sub-section (4), the terms of registration-

(a) may be varied by the Registrar as regards the variety in respect of which, or any condition or restriction subject to which, it has effect on receipt on an application in the prescribed manner of the registered breeder of such variety or his successor;

(b) may be cancelled by the Registrar on the application in the prescribed manner of the registered breeder of such variety or his successor or of the registered agent or registered licensee of such variety;

(c) may be cancelled by the Registrar on the application in the prescribed manner of any person other than the breeder, his successor, the registered agent or the registered licensee on any of the following grounds, namely:-

(i) that the breeder of a variety or his successor or the registered agent or registered licensee of such variety, misrepresented, or failed to disclose, some fact material to the application for registration under sub-section (4) which if accurately represented or disclosed would have justified the refusal of the application for registration of the registered agent or registered licensee;

(ii) that the registration ought not to have been effected having regard to the right vested in the applicant by virtue of a contract in the performance of which he is interested;

(d) may be cancelled by the Registrar on the application in the prescribed manner of the breeder of a registered variety or his successor on the ground that any stipulation in the agreement between the registered agent or the registered licensee, as the case may be, and such breeder or his successor regarding the variety for which such agent or licensee is registered is not being enforced or is not being complied with;

(e) may be cancelled by the Registrar on the application of any person in the prescribed manner on the ground that the variety relating to the registration is no longer existing.

(10) The Registrar shall issue notice in the prescribed manner of every application under this section to the registered breeder of a variety or his successor and to each registered agent or registered licensee (not being the applicant) of such variety.

(11) The Registrar shall, before making any order under sub-section (9), forward the application made in that behalf along with any objection received by any party after notice under sub-section (10) for the consideration of the Authority, and the Authority may, after making such inquiry as it thinks fit, issue such directions to the Registrar as it thinks fit and the Registrar shall dispose of the application in accordance with such directions.

Section 29. Exclusion of certain varieties

(1) Notwithstanding anything contained in this Act, no registration of a variety shall be made under this Act in cases where prevention of commercial exploitation of such variety is necessary to protect public order or public morality or human, animal and plant life and health or to avoid serious prejudice to the environment.

(2) The Central Government shall, by notification in the Official Gazette, specify the genera or species for the purposes of registration of varieties other than extant varieties and fanners’ varieties under this Act.

(3) Notwithstanding anything contained in sub-section (2) and sub-sections (1) and(2) of Section 15, no variety of any genera or species which involves any technology which is injurious to the life or health of human beings, animals or plants shall be registered under this Act.

Explanation. – For the purposes of this sub-section, the expression “any technology” includes genetic use restriction technology and terminator technology.

(4) The Central Government shall not delete any genera or species from the list of general or species specified in a notification issued under sub-section (2) except in the public interest.

(5) Any variety belonging to the genera or species excluded under sub-section (4) shall not be eligible for any protection under this Act.

Section 30. Researcher’s rights

Nothing contained in this Act shall prevent-

(a) the use of any variety registered under this Act by any person using such variety for conducting experiment or research; or

(b) the use of a variety by any person as an initial source of variety for the purpose or creating other varieties:

Provided that the authorisation of the breeder of a registered variety is required where the repeated use of such variety as a parental line is necessary for commercial production of such other newly developed variety.

Section 31. Special provisions relating to application for registration from citizens of convention countries

(1) With a view to the fulfillment of a treaty, convention or arrangement with any country outside India which affords to citizens of India similar privileges as granted to its own citizens, the Central Government may, by notification in the Official Gazette, declare such country to be a convention country for the purposes of this Act.

(2) Where a person has made an application for the granting of a breeder’s right to a variety or for entering such variety in the Official register of varieties in a convention country and that person, or any person entitled to make application on his behalf under Section 14 or Section 23, make an application for the registration of such variety in India within twelve months after the date on which the application was made in the convention country, such variety shall, if registered under this Act, be registered as of the date on which the application was made in the convention country and that date shall be deemed for the purposes of this Act to be the date of registration.

(3) Where applications have been made for granting of a breeder’s right to a variety, or for entering such variety in the Official register of varieties in two or more convention countries, the period of twelve months referred to in sub-section (2) shall be reckoned from the date on which the earlier or earliest of those applications were made.

(4) Nothing in this Act shall entitle the breeder of a registered variety for infringement or rights other than protected under this Act which took place prior to the date of application of registration under this Act.

Section 32. Provisions as to reciprocity

Where any country declared by .the Central Government in this behalf by notification in the Official Gazette under sub-section (1)of Section 31 does not accord to citizens of India the same rights in respect of the registration and protection of a variety, as it accords to its own nationals, no national of such country shall be entitled, either solely or jointly with any other person, to apply for the registration of a variety or be entitled to get a variety registered under this Act.

Section 33. Surrender of certificate of registration

(1) A breeder of a variety registered under this Act may, at any time by giving notice in the prescribed manner to the Registrar, offer to surrender his certificate of registration.

(2) Where such an offer is made, the Registrar shall notify in the prescribed manner every registered agent or registered licensee relating to such certificate.

(3) Any of such agent or licensee may, within the prescribed period after such notification, give notice to the Registrar of his opposition to the surrender and where any such notice is given, the Registrar shall intimate the contents of such notice to the breeder of such variety.

(4) If the Registrar is satisfied after hearing the applicant and all the opponents, if desirous of being heard, that the certificate of registration may properly be surrendered, he may accept the offer and by order revoke the certificate of registration.

Section 34. Revocation of protection on certain grounds

Subject to the provisions contained in this Act, the protection granted to a breeder in respect of a variety may, on the application in the prescribed manner of any person interested, be revoked by the Authority on any of the following grounds, namely:-

(a) that the grant of the certificate of registration has been based on in correct information furnished by the applicant;

(b) that the certificate of registration has been granted to a person who is not eligible for protection under this Act;

(c) that the breeder did not provide the Registrar with such information, documents or material as required for registration under this Act;

(d) that the breeder has failed to provide an alternative denomination of the variety which is the subject matter of the registration to the Registrar in case where the earlier denomination of such variety provided to the Registrar is not permissible for registration under this Act;

(e) that the breeder did not provide the necessary seeds or propagating material to the person to whom compulsory licence has been issued under Section 47 regarding the variety in respect of which registration certificate has been issued to such breeder;

(f) that the breeder has not complied with the provisions of this Act or rule or regulations made thereunder;

(g) that the breeder has failed to comply with the directions of the Authority issued under this Act;

(h) that the grant of the certificate of registration is not in the public interest :

Provided that no such protection shall be revoked unless the breeder is given a reasonable opportunity to file objection and of being heard in the matter.

Section 35. Payment of annual fees and forfeiture of registration in default thereof

(1) The Authority may, with the prior approval of the Central Government, by notification in the Official Gazette, impose a fee to be paid annually, by every breeder of a variety, agent and licensee thereof registered under this Act determined on the basis of benefit or royalty gained by such breeder, agent or licensee, as the case may be, in respect of the variety, for the retention of their registration under this Act.

(2) In any breeder, agent or licensee fails to deposit the fee referred to in sub-section (1) imposed upon him under that sub-section in the prescribed manner up to two consecutive years, the Authority shall issue notice to such breeder, agent or licensee and on service of such notice if he fails to comply with the direction in the notice, the Authority shall declare all the protection admissible under the registration certificate issued to such breeder or agent or licensee forfeited.

(3) The arrears of fee imposed under sub-section (1) shall be deemed to be the arrear of land revenue and shall be recoverable accordingly.

Section 36. Power to cancel or change registration and to rectify the Register

(1) On an application made in the prescribed manner to the Registrar by any person aggrieved, the Registrar may make such order as he may think fit for cancelling or changing any certificate of registration issued under this Act on the ground of any contravention of the provisions of this Act or failure to observe a condition subject to which such registration certificate is issued.

(2) Any person aggrieved by the absence or omission from the Register of any entry, or by any entry made in the Register without sufficient cause, or by any entry wrongly remaining on the Register, may apply in the prescribed manner to the Registrar and the Registrar may make such order for making, expunging or varying the entry as he may think fit.

(3) The Registrar may, in any proceeding under this section, decide any question mat may be necessary or expedient to decide in connection with the rectification of the Register.

(4) The Registrar on his own motion may, after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any order referred to in sub-section (1) or sub-section (2).

Section 37. Correction of Register

The Registrar may, on application made in the prescribed manner by a registered agent or a registered licensee of a variety and after notice to the registered breeder of such variety, correct any error or enter any change, in the name, address or description of such registered agent or registered licensee, as the case may be, in the Register or certificate of registration issued under this Act.

Section 38. Alteration of denomination of a registered variety

(1) The breeder of a variety’ registered under this Act may apply in the prescribed manner to the Registrar to delete any part or to add to or alter the denomination of such variety in any manner not substantially affecting the identity thereof, and the Registrar may refuse leave or may grant it on such terms and subject to such limitations as he may think fit to avoid any conflict with the rights of other breeders of the varieties registered under this Act.

(2) The Registrar may cause an application under this section to be advertised in the prescribed manner in any case where it appears to him that it is expedient so to do, and where he does so, if within the prescribed time from the date of the advertisement any person gives notice to the Registrar in the prescribed manner of opposition to the application, the Registrar shall, after hearing the parties if so required, decide the matter.

(3) Where leave is granted under this section, the denomination of the variety as altered shall be advertised in tile prescribed manner, unless the application has already been advertised under sub-section (2).

Section 39. Farmers’ rights

(1) Notwithstanding anything contained in this Act,-

(i) a farmer who has bred or developed a new variety shall, be entitled for registration, and other protection in like manner as a breeder of a variety under this Act;

(ii) the farmers’ variety shall be entitled for registration if the application contains declaration as specified in clause (h) of sub-section (1) of Section 18;

(iii) a farmer who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation shall be entitled in the prescribed manner for recognition and reward from the Gene Fund :

Provided that material so selected and preserved has been used as donors of genes in varieties registrable under this Act;

(iv) a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act:

Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.

Explanation. – For the purposes of clause (iv), “branded seed” means any seed put in a package or any other container and labeled in a manner indicating that such seed is of a variety protected under this Act.

(2) Where any propagating material of a variety registered under this Act has been sold to a farmer or a group of farmers or any organisation of farmers, the breeder of such variety shall disclose to the farmer or the group of farmers or the organisation of farmers, as the case may be, the expected performance under given conditions, and if such propagating material fails to provide such performance under such given conditions, the farmer or the group of farmers or the organisation of fanners, as the case may be, may claim compensation in the prescribed manner before the Authority and the Authority, after giving notice to the breeder of the variety and after hearing the parties, may direct the breeder of the variety to pay such compensation as it deems fit, to the farmer or the group of farmers or the organisation of farmers, as the case may be.

Section 40. Certain information to be given in application for registration

(1) A breeder or other person making application for registration of any variety under Chapter III shall disclose in the application the information regarding the use of genetic material conserved by any tribal or rural families in the breeding or development of such variety.

(2) If the breeder of such other person fails to disclose any information under sub-section (1), the Registrar may, after being satisfied that the breeder or such person has willfully and knowingly concealed such information, reject the application for registration.

Section 41. Rights of communities

(1) Any person or group of persons (whether actively engaged in farming or not) or any governmental or non-governmental organisation may, on behalf of any village or local community in India, file in any center notified, with the previous approval of the Central Government, by the Authority. in the Official Gazette, any claim attributable to the contribution of the people of that village or local community, as the case may be, in the evolution of any variety for the purpose of staking a claim on behalf of such village or local community.

(2) Where any claim is made under sub-section (1), the center notified under that sub-section may verify the claim made by such person or group of person or such governmental or non-governmental organisation in such manner as it deems fit, and if it is satLsrscu that such village or local community has contributed significantly to the evolution the variety which has been registered under this Act, it shall report its findings to the Authority.

(3) When the Authority, on a report under sub-section (2) is satisfied, after such inquiry as it may deem fit, that the variety with which the report is related has been registered under the provisions of this Act, it may issue notice in the prescribed manner to the breeder of that variety and after providing opportunity to such breeder to file objection in the prescribed manner and of being heard, it may subject to any limit notified by the Central Government, by order, grant such sum of compensation to be paid to a person or group of persons or governmental or non-governmental organisation which has made claim under sub-section (1), as it may deem fit.

(4) Any compensation granted under sub-section (3) shall be deposited by the breeder of the variety in the Gene Fund.

(5) The compensation granted under sub-section (3) shall be deemed to be an arrear of land revenue and shall be recoverable by the Authority accordingly.

Section 42. Protection of innocent infringement

Notwithstanding anything contained in this Act, –

(i) a right established under this Act shall not be deemed to be infringed by a farmer who at the time of such infringement was not aware of the existence of such right; and

(ii) a relief which a court may grant in any suit for infringement referred to in Section 65 shall not be granted by such court, nor any cognizance of any offence under this Act shall be taken, for such infringement by any court against a farmer who proves, before such court, that at the time of the infringement he was not aware of the existence of the right so infringed.

Section 43. Authorisation of farmers’ variety

Notwithstanding anything contained in sub-section (6) of Section 23 and Section 28, where an essentially derived variety is derived from a farmers’ variety, the authorisation under sub-section (2) of Section 28 shall not be given by the breeder of such farmers’ variety except with the consent of the fanners or group of fanners or community of farmers who have made contribution in the preservation or development of such variety.

Section 44. Exemption from fees

A farmer or group of farmers or village community shall not be liable to pay any fees in any proceeding before the Authority or Registrar or the Tribunal or the High Court under this Act or the rules made thereunder.

Explanation. – For the purposes of this section, “fees in any proceeding” includes any fees payable for inspection of any document or for obtaining a copy of any decision or order or document under this Act or the rules, made thereunder.

Section 45. Gene Fund

(1) The Central Government shall constitute a Fund to be called the National Gene Fund and there shall be credited thereto-

(a) the benefit sharing received in the prescribed manner from the breeder of a variety or an essentially derived variety registered under this Act, or propagating material of such variety or essentially derived variety, as the case may be;

(b) the annual fee payable to the Authority by way of royalty under sub-section (4) of Section 35;

(c) the compensation deposited in the Gene Fund under sub-section (4) of Section 41;

(d) the contribution from any national and international organisation and other sources.

(2) The Gene Fund shall, in the prescribed manner, be applied for meeting-

(a) any amount to be paid by way of benefit sharing under sub-section (5) of Section 26;

(b) the compensation payable under sub-section (3) of Section 41;

(c) the expenditure for supporting the conservation and sustainable use of genetic resources including in-situ and ex-situ collections and for strengthening the capability of the Panchayat in carrying out such conservation and sustainable use;

(d) the expenditure of the schemes relating to benefit sharing framed under Section 46.

Section 46. Framing of schemes, etc

(1) The Central Government shall, for the purposes of Section 41 and clause (d) of sub-section (2) of Section 45, frame, by notification in the Official Gazette, one or more schemes.

(2) In particular, and without prejudice to the generality of the provisions of sub-section (1), the scheme may provide for all or any of the following matters, namely:-

(a) the registration of the claims for the purposes of Section 41 under the scheme and all matters connected with such registration;

(b) the processing of such claims for securing their enforcement and matters connected therewith;

(c) the maintenance of records and registers in respect of such claims;

(d) the utilisation, by way of disbursal (including apportionment) or otherwise, of any amount received in satisfaction of such claims;

(e) the procedure for disposal or apportionment by the Authority in the event of dispute regarding such claims;

(f) the utilisation of benefit sharing for the purposes relating to breeding, discovery or development of varieties;

(g) the maintenance and audit of accounts with respect to the amounts referred to in clause (d).

Section 47. Power of Authority to make order for compulsory licence in certain circumstances

(1) At any time, after the expiry of three years from the date of issue of a certificate of registration of a variety, any person interested may make an application to the Authority alleging that the reasonable requirements of the public for seed or other propagating material of the variety have not been satisfied or that the seed or other propagating material of the variety is not available to the public at a reasonable price and pray for the grant of a compulsory licence to undertake production, distribution and sale of the seed or other propagating material of that variety.

(2) Every application under sub-section (1) shall contain a statement of the nature of the applicant’s interest together with such particulars as may be prescribed and the facts upon which the application is based.

(3) The Authority, after consultation with the Central Government, and if satisfied after giving an opportunity to the breeder of such variety to file opposition and after hearing the parties, on the issue that the reasonable requirements of the public with respect to the variety have not been satisfied or that the seed or other propagating material of the variety is not available to the public at a reasonable price, may order such breeder to grant a licence to the applicant upon such terms, and conditions as it may deem fit and send a copy of such order to the Registrar to register the title of such applicant as licensee under sub-section (4) of Section 28 on payment of such fees by the applicant as is referred to in that sub-section.

Section 48. When requirement of public deemed to have not been satisfied

In determining the question as to whether the reasonable requirements of the public for seeds of a variety or its propagating material as referred to in sub-section (1) or sub-section (3) of Section 47, the Authority shall take into account-

(i) the nature of the variety, the time which has elapsed since the grant of the certificate of registration of the variety, price of the seed of the variety and the measures taken by the breeder or any registered licensee of the variety to meet the requirement of the public; and

(ii) the capacity, ability and technical competence of the applicant to produce and market the variety to meet the requirement of the public.

Section 49. Adjournment of application for grant of compulsory licence

(1) If the breeder of a variety registered under this Act in respect of which any application has been pending before the Authority under Section 47 makes a written request to the Authority on the ground that due to any reasonable factor, such breeder has been unable to produce seed or other propagating material of the variety on a commercial scale to an adequate extent till the date of making such request, the Authority may, on being “satisfied that the said ground is reasonable, adjourn the hearing of such application for such period not exceeding twelve months in aggregate as it may consider sufficient for optimum production of the seed or propagating material of such variety, as the case may be, by such breeder.

(2) No adjournment of the application under sub-section (1) shall be granted unless the Authority is satisfied that the breeder of the variety registered under this Ac tin respect of which such application is made, has taken immediate measures to meet the reasonable requirement of the public for the seed or other propagating material of such variety.

Section 50. Duration of compulsory licence

The Authority shall determine the duration of the compulsory licences granted under this chapter and such duration may vary from case to case keeping in view the gestation period and other relevant factors but in case it shall not exceed the total remaining period of the protection of that variety and when a compulsory licence is granted the prescribed authority shall, in the prescribed manner make available to the licensee of such compulsory licence, the reproductive material of the variety relating to such compulsory licence stored in the National Gene Bank or any other center.

Section 51. Authority to settle terms and conditions of licence

(1) Authority shall, while determining the terms and conditions of a compulsory licence under the provisions of this chapter, endeavour to secure-

(i) reasonable compensation to the breeder of the variety relating to the compulsory licence having regard to the nature of the variety, the expenditure incurred by such breeder in breeding the variety or for developing it, and other relevant factors;

(ii) that the compulsory licensee of such variety possesses the adequate means to provide to the farmers, the seeds or other propagating material of such variety, timely and at reasonable market price.

(2) No compulsory licence granted by the Authority shall authorise the licensee to import the variety relating to such licence or any seed or other propagating material of such variety form aboard where such import would constitute an infringement of the rights of the breeder of such variety.

Section 52. Revocation of compulsory licence

(1) The Authority, on its own motion or on application from an aggrieved person made to it in the prescribed form, it is satisfied that a compulsory licence registered under this chapter has violated any terms or conditions of his licence or it is not appropriate to continue further such licence in public interest, may, after giving such licensee an opportunity to file opposition and of being heard, make order to revoke such licence.

(2) When a licence is revoked under sub-section (1) by an order of the Authority, the Authority shall send a copy of such order to the Registrar to rectify the entry or correct the Register relating to such revocation and the Registrar shall rectify the entry or correct the Register accordingly.

Section 53. Modification of compulsory licence

The Authority may, on its own motion or on application from the licensee of a compulsory licence, after providing the opportunity of being heard to the breeder of the variety registered under this Act relating to such compulsory licence, if it considers, in public interest, so to do, modify, by order, such terms and conditions as it thinks fit and send a copy of such order to the Registrar to correct the entries and Register accordingly to such modification and the Registrar shall ensure such corrections to be made accordingly.

Section 54. Tribunal

The Central Government may, by notification in the Official Gazette, establish a Tribunal to be known as the Plant Varieties Protection Appellate Tribunal to exercise the jurisdiction, powers and authority conferred on it by or under this Act.

Section 55. Composition of Tribunal

(1) The Tribunal shall consist of a Chairman and such number of Judicial Members and Technical Members as the Central Government may deem fit to appoint.

(2) A Judicial Member shall be a person who has for at least ten years held a judicial office in the territory of India or who has been a member of the Indian Legal Service and has held a post in Grade-11 of that service or any equivalent or higher post for at least three years or who has been an advocate for at least twelve years.

Explanation. – For the purposes of this sub-section, –

(i) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;

(ii) in computing the period during which a person has been an advocate, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, required special knowledge of law after he became an advocate.

(3) A Technical Member shall be a person who is an eminent agricultural scientist in the field of plant breeding and genetics and possesses an experience of at least twenty years to deal wit!’, plant variety or seed development activity, or who has held the post in the Central Government or a State Government dealing with plant variety or seed development equivalent to the Joint Secretary to the Government of India for at least three years and possesses special knowledge in the field of plant breeding and genetics.

(4) The Central Government shall appoint a Judicial Member of the Tribunal to be the Chairman thereof.

(5) The Central Government may appoint one of the Members of the Tribunal to be the senior Member thereof.

(6) The senior Member or a Member shall exercise such’ of the powers and perform such of the functions of the Chairman as may be delegated to him by the Chairman by a general or special order in writing.

Section 56. Appeals to Tribunal

(1) An appeal shall be preferred to the Tribunal within the prescribed period from any-

(a) order or decision of the Authority or Registrar, relating to registration of a variety; or

(b) order or decision of the Registrar relating to registration as an agent or a licensee of a variety; or

(c) order or decision of the Authority relating to claim for benefit sharing; or

(d) order or decision of the Authority regarding revocation of compulsory licence or modification of compulsory licence; or

(e) order or decision of the Authority regarding payment of compensation, made under this Act or the rules made thereunder.

(2) Every such appeal shall be preferred by a petition in writing and shall be in such form and shall contain such particulars as may be prescribed.

(3) The Tribunal in disposing of an appeal under this section shall have the power to make any order which the Authority or the Registrar could make under this Act.

Section 57. Orders of Tribunal

(1) The Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.

(2) The Tribunal may, at any time within thirty days from the date of the order, with a view to rectifying the mistake apparent from the record, amend any order passed by it under sub-section (1), and make such amendment if the mistake is brought to its notice by the appellant or the opposite party.

(3) In every appeal, the Tribunal may, where it is possible, hear and decide such appeal within a period of one year from the date of filing of the appeal.

(4) The Tribunal shall send a copy of any order passed under this section to the Registrar.

(5) The order of the Tribunal under this Act shall be executable as a decree of a civil court.

Section 58. Procedure of Tribunal

(1) The powers and functions of the Tribunal maybe exercised and discharged by Benches constituted by the Chairman of the Tribunal form among the Members thereof.

(2) A Bench shall consist of one Judicial Member and one Technical Member.

(3) If the Members of a Bench differ in opinion on any point, they shall state the point or points on which they differ, and the case shall be referred to the Chairman for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.

(4) Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers or the discharge of its functions, including the places at which the Benches shall hold their sittings.

(5) The Tribunal shall, for the purpose of discharging its functions, have all the powers which are vested in the Registrar under Section 11, and any proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of Section193 and 228 and for the purpose of Section 196 of the Indian Penal Code, 1860 (45 of1860), and the Tribunal shall be deemed to be a civil court for all the purposes of Section 195 and Chapter 26 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no’ interim order (whether by way of injunction or stay or any other manner) shall be made on, or in, any proceedings relating to an appeal unless-

(a) copies of such appeal and of all documents in support of the plea for such interim order are furnished to the party against whom such appeal is made or proposed to be made; and

(b) opportunity is given to such party to be heard in the matter.

Section 59. Transitional provisions

Notwithstanding anything contained in this Act, till the establishment of the Tribunal under Section 54, the Intellectual Property Appellate Board established under Section 83of the Trade Marks Act, 1999(47 of1999) shall exercise the jurisdiction, powers and authority conferred on the Tribunal under this Act subject to the modification that in any Bench of such Intellectual Property Appellate Board constituted for the purposes of this section, for the Technical Member referred to in sub-section (2) of Section 84of the said Trade Marks Act, 1999theTechnical Member shall be appointed under this Act and he shall be deemed to be the Technical Member for constituting the Bench under the said sub-section (2) of Section 84 for the purposes of this Act.

Section 60. Grants by Central Government

The Central Government may, after due appropriation made by Parliament by law in this behalf, make to the Authority grants and loans of such sums of money as the Central Government may think fit for being utilised for the purposes of this Act.

Section 61. Authority Fund

(1) There shall be constituted a fund to be called the Protection of Plant Varieties Authority Account and there shall be credited thereto-

(a) all grants and loans made to the Authority by the Central Government under Section 60;

(b) all fees received by the Authority and the Registrar except the annual fee determined on the basis of benefit or royalty under sub-section (1) of Section 35;

(c) all sums received by the Authority from such other sources as may be decided upon by the Central Government.

(2) The Protection of Plant Varieties Authority Account shall be applied for meeting-

(a) the salaries, allowances and other remuneration of the Chairperson, officers and other employees of the Authority and allowances, if any, payable to the members;

(b) the other expenses of the Authority in connection with the discharge of its functions and for purposes of this Act.

Section 62. Budget, accounts and audit

(1) The Authority shall prepare a budget, maintain proper accounts and other relevant records (including the accounts and other relevant records of the Gene Fund) and prepare an annual statement of accounts in such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India.

(2) The accounts of the Authority shall be audited by the Comptroller and Auditor General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Authority to the Comptroller and Auditor-General of India.

(3) The Comptroller and Auditor-General of India and any other person appointed by him in connection with the audit of the accounts of the Authority shall have the same rights and privileges and authority in connection with such audit as the Comptroller and Auditor-General of India generally has in connection with the audit of the Government accounts and, in particular, 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 Authority.

(4) The accounts of the Authority as certified by the Comptroller and Auditor-General of India or any other person appointed by him in this behalf together with the audit report thereon shall be forwarded annually to the Central Government and that Government shall cause the same to be laid before each Horse of Parliament.

Section 63. Financial and administrative powers of Chairperson

The Chairperson shall exercise such financial and administrative powers over the functions of the Authority as may be prescribed:

Provided that the Chairperson shall have the authority to delegate such of his financial and administrative powers as he may think fit to a member or any other officer of the Authority subject to the condition that the member or such other officer shall, while exercising such delegated powers, continue to be under the direction, control and supervision of the Chairperson.

Section 64. Infringement

Subject to the provisions of this Act, a right established under this Act is infringed by a person-

(a) who, not being the breeder of a variety registered under this Act or a registered agent or a registered licensee of that variety, sells, exports, imports or produces such variety without the permission of its breeder or within the scope of a registered licence or registered agency without permission of the registered licensee or registered agent, as the case may be;

(b) who uses, sells exports, imports or produces any other variety giving such variety, the denomination identical with or deceptively similar to the denomination of a variety registered under this Act in such manner as to cause confusion in the mind of general people in identifying such variety so registered

Section 65. Suit for infringement, etc

(1) No suit-

(a) for the infringement of a variety registered under this Act; or

(b) relating to any right in a variety registered under this Act, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.

(2) For the purposes of clauses (a) and (b) of sub-section (1), “District Court having jurisdiction” shall mean the District Court within the local limits of whose jurisdiction of the cause of action arises.

Section 66. Relief in suits for infringement

(1) The relief which a court may grant in any suit for infringement referred to in Section 65 includes an injunction and at the option of the plaintiff, either damages or a share of the profits.

(2) The order of injunction under sub-section (1) may include an ex-parte injunetion or any interlocutory order for any of the following matters, namely:-

(a) discovery of documents :-

(b) preserving of infringing variety or documents or other evidence which are related to the subject-matter of the suit;

(c) attachment of such property of the defendant which the court deems necessary to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.

Section 67. Opinion of scientific adviser

(1) When the court has to form an opinion upon any question of fact or a scientific issue, such court may appoint an independent scientific adviser to suggest it or to inquire into and report upon the matter to enable it to form the desired opinion.

(2) The scientific adviser m\ be paid such remuneration or expenses as the court may fix.

Section 68. Prohibition to apply denomination of a registered variety

(1) No person other than the breeder of a variety registered under this Act or a registered licensee or a registered agent thereof shall use the denomination of that variety in the manner as maybe prescribed.

(2) A person shall be deemed to apply the denomination of a variety registered under this Act who-

(a) applies it to the variety itself; or

(b) applies it to any package in or with which the variety is sold, or exposed for sale, or had in possession such package for sale or for any purpose of trade or production; or

(c) places, encloses or annexes the variety which is sold, or exposed for sale, or had in possession for sale or for any purpose of trade or production, in or with any package or other thing to which the denomination of such variety registered under this Act has been applied; or

(d) uses the denomination of such variety registered under this Act in any manner reasonably likely to lead to the belief that the variety or its propagating material in connection with which it is used is designated or described by the denomination; or

(e) in relation to the variety uses such denomination in any advertisement, invoice, catalogue, business letter, business paper, price list or other commercial document and such variety is delivered to a person in pursuance of a request or order made by reference to the denomination as so used.

(3) A denomination shall be deemed to be applied to a variety whether it is woven in, impressed on, or otherwise worked into, or annexed or affixed to, such variety or to any package or other thing.

Section 69. Meaning of falsely applying denomination of a registered variety

(1) A person shall be deemed to falsely apply the denomination of a variety registered under this Act who, without the assent of the breeder of such variety,-

(a) applies such denomination or a deceptively similar denomination to any variety or any package containing such variety;

(b) uses any package bearing a denomination which is identical with or deceptively similar to the denomination of such variety registered under this Act, for the purpose of packing, filling or wrapping therein any variety other than such variety registered under this Act.

(2) Any denomination of a variety registered under this Act falsely applied as mentioned in sub-section (1), is in this Act referred to as false denomination.

(3) In any prosecution for falsely applying a denomination of a variety registered under this Act the burden of proving the assent of the breeder of such variety shall lieon the accused.

Section 70. Penalty for applying false denomination, etc

(1) Any person who

(a) applies any false denomination to a variety; or

(b) indicates the false name of a country or place or false name and address of the breeder of a variety registered under this Act in the course of trading such variety. shall, unless he proves that he acted, without intent to defraud, be punishable with imprisonment for a term which shall not be less than three months but which may extend to two years, or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees, or with both.

Section 71. Penalty for selling varieties to which false denomination is applied, etc

Any person who sells, or exposes for sale, or has in his possession for sale or for any purpose of trade or production of any variety to which any false denomination is applied or to which an indication of the country or place in which such variety was made or produced or the name and address of the breeder of such variety registered under this Act has been falsely made, shall, unless he proves-

(a) that having taken all reasonable precautions against committing an offence against this section, he had at the time of commission of the alleged offence no reason to suspect the genuineness of the denomination of such variety or that any offence had been committed in respect of indication of the country or place in which such variety registered under this Act, was made or produced or the name and address of the breeder of such variety,

(b) that, on demand by or on behalf of the prosecutor, he gave all the information in his possession with respect to the person from whom he obtained such variety; or

(c) that otherwise he had acted innocently,

be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years, or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees, or with both.

Section 72. Penalty for falsely representing a variety as registered

Whoever makes any representation with respect to the denomination of a variety or its propagating material or essentially derived variety or its propagating material not being variety or its propagating material or essential derived variety or its propagating material registered under this Act, to the effect that it is a variety or its propagating material or essentially derived variety or its propagating material registered under this Act or otherwise represents any variety, or its propagating material, or essentially derived variety or its propagating material not registered under this Act to the effect that it is registered under this Act shall be punishable with imprisonment for a term, which shall not be less than six months but which may extend to three years, or with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees, or with both.

Section 73. Penalty for subsequent offence

Whoever, having already been convicted of an offence under this Act is again convicted of such offence shall be punishable for the second and for every subsequent offence with imprisonment for a term which shall not be less than one year but which may extend to three years, or with fine which shall not be less than two lakh rupees but which may extend to twenty lakh rupees, or with both.

Section 74. No offence in certain cases

The provisions of this Act relating to offences shall be subject to the right created as recognized by this Act and no act or omission shall be deemed to be an offence under the provisions of this Act if such act or omission is permissible under this Act.

Section 75. Exemption of certain persons employed in ordinary course of business

Where a person accused of an offence under this Act proves that in the ordinary course of his employment he has acted without any intention to commit the offence and having taken all reasonable precaution against committing the offence chance he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the act so charged as an offence and on demand made by or on behalf of the prosecutor, he gave all the information in his possession with respect to the person on whose behalf the offence was committed, he shall be acquitted.

Section 76. Procedure where invalidity of registration is pleaded by the accused

(1) Where the offence charged under this Act is in relation to a variety or its propagating material or essentially derived variety or its propagating material registered under this Act and the accused pleads that the registration of such variety or its propagating material or essentially derived variety r its propagating material, as the case may be, is invalid and the court is satisfied that such offence is prima facie not tenable, it shall not proceed with the charge but shall adjourn the proceedings for three months from the date on which the plea of the accused is recorded to enable the accused to file an application before the Registrar under this Act for the rectification of the Register on the ground that the registration is invalid.

(2) If the accused proves to the court that he has made such application within the time so limited or within such further time as the court for sufficient cause allow, the further proceedings in the prosecution shall stand stayed till the disposal of such application for rectification.

(3) If within a period of three months or within such extended time as may be allowed by the court, the accused fails to apply to the Registrar for rectification of the Register, the court shall proceed with the case as if the registration were valid.

(4) Where before institution of a complaint of an offence referred to in sub-section(1), any application for the rectification of the Register concerning the registration of the variety or its propagating material or essentially derived variety or its propagating material, as the case may be, in question on the ground of invalidity of such registration has already been properly made to and is pending before the Registrar, the court shall stay the further proceedings in the prosecution pending the disposal of the application aforesaid and shall determine the charge against the accused in conformity with the result of the application for rectification.

Section 77. Offence by companies

(1) If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Proved that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had 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, or, or that the commission of the offence is attributed to any neglect on the part of any director, manger, 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 purposes 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.

Section 78. Protection of security of India

Notwithstanding anything contained in this Act, the Authority or the Registrar shall-

(a) not disclose any information relating to the registration of a variety or any application relating to the registration of a variety under this Act, which it considers prejudicial to the interest of the security of India; and

(b) take any action regarding the cancellation of registration of such varieties registered under this Act which the Central Government may by notification in the Official Gazette specify in the interest of the security of India.

Explanation. – For the purposes of this section, the expression “security of India” means any action necessary for the security of India which relates to the use of any produce of any variety registered under this Act directly or indirectly for the purposes of war or military establishment or for the purposes of war or other emergency in international relations.

Section 79. Implied warranty on sale of registered variety, etc

Where a denomination of a variety or its propagating material or essentially derived variety or its propagating material registered under this Act has been applied to the variety or its propagating material or essentially derived variety or its propagating material, as the case may be, on sale or in the contract for sale of such variety or its propagating material or essentially derived variety or its propagating material, as the case may be, the seller shall be deemed to warrant that the denomination is a genuine denomination and not falsely applied, unless the contrary is expressed in writing signed by or on behalf of the seller and delivered at the time of the sale of the variety or its propagating material or essentially derived variety or its propagating material, as the case may be, or contract to and accepted by the buyer.

Section 80. Death of party to a proceeding

If a person who is a party to a proceeding under this Act (not being a proceeding in a court) dies pending the proceeding, the Authority or the Registrar, as the case may be, may, on request, and on proof to the satisfaction of such Authority or Registrar, of the transmission of the interest of the deceased person, substitute in the proceedings his successor in interest in his place, or, if the Authority or the Registrar is of opinion that the interest of the deceased person is sufficiently represented by the surviving party, permit the proceedings to continue without the substitution of his successor in interest.

Section 81. Right of registered agent and the registered licensee to institute suit

The registered agent or the registered licensee of a variety or its propagating material or essentially derived variety or its propagating material registered under this Act may institute appropriate proceedings in the court under this Act on behalf of the breeder of such variety or its propagating material or essentially derived variety or its propagating material, as the case may be, if such agent or licensee has been authorised in the prescribed manner by such breeder for doing so.

Section 82. Evidence of entry in Register, etc. and things done by the Authority and the Registrar

(1) A copy of any entry in the Registrar, or of any document issued under this Act purporting to be certified by the Authority or the Registrar and sealed with the seal of such Authority or Registrar, as the case may be. shall be admitted in evidence in all court and in all proceedings without further proof of production of the original.

(2) A certificate purporting to be under the hand of the Authority or the Registrar, as the case may be, as to any entry, matter or things that such Authority or Registrar is authorised by this Act or the rules to make or do shall be prima facie evidence of the entry having been made, and of the content thereof, or of the matter or things having been done or not done.

Section 83. Authority, Registrar and other officers not compellable to production of Register, etc

The Authority or the Registrar or any officer working under the Authority or the Registrar, as the case may be, shall not, in any legal proceedings, be compelled to produce the Register or any other document in its or his custody, Accontent of which can be proved by the production of a certified copy issued under this Act in the prescribed manner or to appear as a witness to prove the matter there in recorded unless by order of the court made for special cause.

Section 84. Document open to public inspection

Any person may, on an application to the Authority or the Registrar, as the case may be, and on payment of such fees as maybe prescribed, obtain a certified copy of any entry in the Register or any other document in any proceedings under this Act pending before such Authority or Registrar or may inspect such entry or document

Section 85. Report of Authority to In placed before Parliament

The Central Government shall cause to be placed before both House or Parliament once a year a report regarding the performance of the Authority under this Act.

Section 86. Government to be bound

The provisions or this Act shall be binding on the Government.

Section 87. Proceedings before Authority or Registrar

All proceedings before the Authority or the Registrar, as the case may be, relating to registration of variety or essentially derived variety, registration of agent, registration of licence or registration of compulsory licensing under this Act shall be deemed to be judicial proceedings within the meaning of Section 193 and Section 228, and for the purpose of Section 196 of the Indian Penal Code, 1860 (45 of 1860) and the Authority or the Registrar, as the case may be, shall be deemed to be a civil court for the purposes of Section 195 and Chapter 26 of the Code of Criminal Procedure, 1973 (2 of 1974).

Section 88. Protection of action taken in good faith

No suit, prosecution or other legal proceeding shall lie against the Central Government, or against the Chairperson, or members, or the Registrar or any person acting under such Government, Authority or Registrar under the provisions of this Act, for anything which is in good faith done or intended to be done in pursuance of this Act or any rule, regulation, scheme or order made thereunder.

Section 89. Bar or jurisdiction

No civil court shall have jurisdiction in respect of any matter which the Authority or the Registrar or the Tribunal is empowered by or under this Act to determine.

Section 90. Members and staff of Authority, etc. to be public servants

The Chairperson, members, officers and other employees of the Authority and the Registrar-General and the officers and other employees working under him shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code, 1860 (45 of1860).

Section 91. Exemption from tax on wealth and income

Notwithstanding anything contained in the Wealth Tax Act, 1957 (27 of 1957), the Income Tax Act, 1961 (43 of1961), or any other enactment for the time being in force relating to tax on wealth, income, profits or gains, the Authority shall not be liable to pay wealth tax, income tax or any other tax in respect of its wealth, income, profits or gains derived.

Section 92. Act to have overriding effect

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

Section 93. Power of Central Government to give directions

The Central Government may give directions to the Authority as it may think necessary in the public interest for the execution of all or any of the functions of the Authority under any provision of this Act or rules and regulations made thereunder.

Section 94. Power to remove difficulties

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to be necessary for removing the difficulty :

Provided that no order shall be made under this section after the expiry of two years from the date of commencement of this Act.

(2) Every order made under sub-section (1) shall be laid before each House of Parliament.

Section 95. Power to make regulations

(1) The Authority may, with the previous approval of the Central Government, by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:-

(a) duties and jurisdiction of the Registrar under sub-section (4) of Section 12 ;

(b) the term of office and the conditions of service of the Registrars under subsection (5) of Section 12;

(c) the criteria of distinctiveness, uniformity and stability for registration of extant variety under sub-section (2) of Section 15 ;

(d) the manner in which a single and distinct denomination to a variety shall be assigned by the applicant under sub-section (1) of Section 17;

(e) the matters governing the assignment of denomination to a variety under subsection (2) of Section 17;

(f) the time within which the Registrar may require the applicant to propose another denomination under sub-section (3) of Section 17;

(g) the form of application under clause (d) of sub-section (1) of Section 18 ;

(h) the standards for evaluating seed during tests under sub-section (1) of Section19;

(i) the quantity of seeds or propagating material including parental line seeds to be deposited by a breeder and the time to be specified under sub-section (1) of Section 27;

(j) the limitations and conditions subject to which a breeder may authorise a person to produce, sell, market or otherwise deal with variety under sub-section (2) of Section 28;

(k) the form for authorisation under sub-section (3) of Section 28.

Section 96. Power of Central Government to make rules

(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the following power, such rules may provide for all or any of the following matters, namely:-

(i) the term of office of the Chairperson and the manner of filling the post under sub-section (6) of Section 3;

(ii) the salary and allowances of the Chairperson and his conditions of service in respect of leave, pension, provident fund and other matters and the allowances for non- official members for attending the meeting under sub-section (8) of Section 3;

(iii) the time and place of meetings of the Authority and the rules of procedure in regard to the transaction of business at its meetings [including the quorum at its meeting and the transaction of business of its Standing Committee appointed under sub-section (7) of Section 3 under sub-section (1) of Section 4;

(iv) the control and restriction regarding appointment of the officers and other employees of the Authority and the method of such appointment, salary and allowances and other conditions of service under Section 6;

(v) the powers and duties of the Chairperson under Section 7;

(vi) the terms and conditions subject to .which and the manner in which the measures referred to in sub-section (1) of Section 8 may provide for the registration of new extant varieties under clause (a) of sub-section (2) of that section;

(vii) the manner for arranging production and sale of the seed under clause (e) of sub-section (2) of Section 8;

(viii) the order by the Authority or the Registrar as to costs under clause (b) of Section 11;

(ix) the salary and allowances of Registrar-General of Plant Varieties and the conditions of service in respect of his leave, pension, provident fund and other matters under sub-section (3) of Section 12;

(x) the matters to be included in the National Register of Plant Varieties under sub-section (1) of Section 13;

(xi) the manner of authorising a person under clause (e) of sub-section (1) of Section 16;

(xii) the fees under clause (g) and the other particulars under clause (i) which shall accompany the application under sub-section (1) of Section 18;

(xiii) the form of application under the proviso to sub-section (1) of Section 18;

(xiv) the period within which after making application a proof of the right to make the application is to be furnished under sub-section (3) of Section 18;

(xv) the fees to be deposited by the applicant under sub-section (2) of Section 19;

(xvi) the manner and method of conducting the tests under sub-section (3) of Section 19;

(xvii) the manner of advertising application, conditions or limitations and specifications of variety for registration including its photographs or drawings under sub-section (1) of Section 21;

(xviii) the manner of giving notice and the fees payable therefore under sub- section (2) of Section 21;

(xix) the manner of sending counter-statement under sub-section (4) of Section 21;

(xx) the manner of submitting evidence and the time within which such evidence may be submitted under sub-section (6) of Section 21;

(xxi) the documents and fees under sub-section (1) and the tests to be conducted and the procedure to be followed under sub-section (3) of Section 23;

(xxii) the form of a certificate of registration and the other authority to which a copy thereof shall be sent under sub-section (8) of Section 23;

(xxiii) the form of certificate of registration and the other authority to which a copy thereof and the maximum time for issuing the certificate of registration under subsection (2) of Section 24;

(xxiv) the manner of giving notice to the applicant under sub-section (3) of Section 24;

(xxv) the fees for review and renew under sub-section (6) of Section 24;

(xxvi) the contents of the certificate and the manner of publishing such contents and inviting claim of benefits sharing under sub-section (1) of Section 26;

(xxvii) the form for submitting claims benefit sharing and the fees to be accompanied therewith under sub-section (2) of Section 26;

(xxviii) the manner in which and the time within which opposition to claims shall be submitted under sub-section (3) of Section 26;

(xxix) the manner of making reference under sub-section (7) of Section 26;

(xxx) the manner of making an application for registration for title and the fees to be accompanied therewith under sub-section (4) of Section 28;

(xxxi) the manner of referring the dispute regarding registration of entitlement under the proviso to sub-section (4) of Section 28;

(xxxii) the manner to enter into a certificate the brief conditions of entitlement under sub-section (5) of Section 28;

(xxxiii) the manner of making an application for varying the terms of registration under clause (a) of sub-section (9) of Section 28;

(xxxiv) the manner of making an application by registered breeder and certain other for cancellation of terms of registration under clause (b) of sub-section (9) of Section 28;

(xxxv) the manner of application by any person other than the breeder, his successor, the registered agent or the registered licensee for cancellation of terms of registration under clause (c) of sub-section (9) of Section 28;

(xxxvi) the manner of application for cancellation of the terms of registration under clause (d) of sub-section (9) of Section 28;

(xxxvii) the manner of application for cancellation of the terms of registration under clause (e) of sub-section (9) of Section 28;

(xxxviii) the manner of issuing notice to the registered breeder of a variety or his successor or to each registered agent or registered licensee (not being the applicant) under sub-section (10) of Section 28;

(xxxix) the manner of giving notice to the Registrar under sub-section (1) of Section 33;

(xl) the manner of notifying to the registered agent or registered licensee under sub-section (2) of Section 33;

(xli) the period within which the notice of opposition under sub-section (3) of Section 33may be given;

(xlii) the manner of making application under Section 34;

(xliii) the manner of depositing fee under sub-section (2) of Section 35;

(xliv) the manner of making application under sub-section (1) of Section 36;

(xlv) the manner of applying to the Registrar under sub-section (2) of Section 36;

(xlvi) the manner of giving notice under sub-section (4) of Section 36;

(xlvii) the manner of application under sub-section (1) of Section 37;

(xlviii) the manner of making application under sub-section (2) of Section 37;

(xlix) the manner to apply to the Registrar under sub-section (1) of Section 38;

(l) the manner of advertising application and to give notice -to the Registrar, and the time from the date of the advertisement within which a person may give such notice under sub-section (2) of Section 38;

(li) the manner of advertising the denomination of the variety under sub-section (3) of Section 38;

(lii) the manner of recognition and reward from Gene Fund under clause (iii) of sub-Section (1) of Section 39;

(liii) the manner of claiming compensation and filing of opposition under sub- section (2) of Section 39;

(liv) the manner of issuing notice and filing objection under sub-section (3) of Section 41;

(lv) the manner of receiving benefit sharing under clause (a) of sub-section (1) of Section 45;

(lvi) the manner of applying Gene Fund under sub-section (2) of Section 45;

(lvii) the particulars to be contained in the application under sub-section (2) of Section 47;

(lviii) the authority and the manner in which such authority shall make available to the compulsory licensee the reproduction material of the variety under Section 50;

(lix) the form for making application under sub-section (1) of Section 52;

(lx) the period within which an appeal shall be preferred under sub-section (1) of Section 56;

(lxi) the form of petition and the particulars which such petition shall contain under sub-section (2) of Section 56;

(lxii) the form for prepair annual statement of accounts under sub-section (1) of Section 62;

(lxiii) the financial and administrative powers which the Chairperson shall exercise under Section 63;

(lxiv) the manner of using the denomination of a verity under sub-section (1) of Section 68;

(lxv) the manner of authorising registered agent or registered licensee under Section 81;

(lxvi) the manner of issuing certificate copy of content of Register or any other document under Section 83;

Bydeb

Wild Life (Protection) Amendment Act, 2006

Section 1. Short title and commencement

 Wild Life (Protection) Amendment Act, 20061

 [No. 39 OF 2006]

 [September 3, 2006]

 An Act further to amend the Wild Life (Protection) Act, 1972

 Be it enacted by Parliament in the Fifty-seventh Year of the Republic of India as follows:-

 Prefatory Note-Statement of Objects and Reasons.-Project Tiger was launched in the country on 1st April, 1973 for conserving the endangered tiger. Initially, 9 Tiger Reserves were covered under the project, which has now increased to 28 Tiger Reserves, falling in 17 States. The Central Government provides funding support to projects prepared by the States in this regard. Since then, the Project Tiger is a Centrally Sponsored Scheme. The implementation of the project over the years highlighted the need for a statutory Authority, having legal backing with well defined functions, for conservation of tigers in the country. Despite the project ongoing for more than three decades, the status of tigers in the country remains critical, which necessitate the need for addressing the issue rights from planning to administration and making provisions for dealing with cases of violation.

Any conservation effort to save tiger, must take care of the prevailing peculiar circumstances in the country, where forests are not wilderness areas but also where tribal and other people live. On the basis of the recommendations of the National Board for Wild Life, a Task Force was set up to look into the problems of tiger conservation in the country and to suggest comprehensive measures for its improvement.

The recommendations of the Task Force, inter alia, include strengthening of Project Tiger by giving it statutory as well as administrative powers. It has also recommended that the report relating to Project Tiger should annually be sent to the Central Government for laying in Parliament so that the commitment to the Project Tiger is reviewed from time to time.

With this twin objective of tiger conservation and harmonizing the rights of the tribal people living in and around tiger reserves, it is proposed to amend the Wild Life (Protection) Act, 1972, to provide for the National Tiger Conservation Authority responsible for implementation of Project Tiger plan for protecting endangered tigers; and to harmonize and facilitate the implementation of the Tiger Conservation Plans prepared by the State Governments taking into account the needs and concerns of the local people. The amendments are aimed at putting in place, a mechanism which will balance and manage, the livelihood needs of the local people with the imperatives of tiger conservation. The proposed amendment, inter alia, envisage-

(i) constitution of the National Tiger Conservation Authority;

 (ii) powers and functions of the Tiger Conservation Authority, so as to include,-

(a) approval of Tiger Conservation Plan prepared by State Governments;

(b) lay down normative standards, guidelines for tiger conservation in the buffer and core areas of tiger reserve, apart from ensuring their due compliance;

(c) providing information on protection measures including future conservation plan, tiger estimation, disease, surveillance mortality survey, patrolling, reports on untoward happenings and such other management aspects as it may deem fit, including future plan for conservation;

(d) approve and co-ordinate research on tiger, its habitat and related ecological and socio-economic parameters;

(e) ensure that identified tiger bearing forests are not diverted for ecologically unsustainable uses, except in public interest, and with the approval of the National Board for Wild Life on the advice of the Tiger Conservation Authority;

(f) facilitate and support tiger reserve management in the State through eco-development and people’s participation as per approved management plans, and to support similar initiatives in adjoining areas consistent with the Central and State laws;

(iii) preparing the Annual Report of the Tiger Conservation Authority and submission of the audited report to the Central Government for laying before Parliament;

(iv) constitution of Steering Committee by States;

(v) preparation of the Tiger Protection and Conservation Plans by State Governments including staff development and deployment, protection, habitat inputs, addressing the livelihood concerns of local people and compatibility of forestry operations in the adjoining Forest Divisions;

(vi) ensuring the agricultural, livelihood, developmental and other interests of people living inside forests or in tiger bearing forest areas in and around a Tiger Reserve;

(vii) establishing a Tiger Conservation Foundation by States for supporting their development.

The Bill seeks to achieve the aforesaid objects.

——————–

1. Received the assent of the President on September 3, 2006 and published in the Gazette of India, Extra., Part II, Section 1, dated 4th September, 2006, pp. 1-9, No. 45.

(1) This Act may be called the Wild Life (Protection) Amendment Act, 2006.

(2) It shall come into force on such date (Came into force, w.e.f. 4-9-2006, vide S.O. 1402(E), dt. 4-9-2006) as the Central Government may, by notification in the Official Gazette, appoint.

Section 2. Insertion of new Chapters IV-B and IV-C

After Chapter IV-A of the Wild Life (Protection) Act, 1972 (53 of 1972) (hereinafter referred to as the principal Act), the following chapters shall be inserted, namely:-

‘Chapter IV-B

NATIONAL TIGER CONSERVATION AUTHORITY

38-K. Definitions.-In this chapter,-

(a) “National Tiger Conservation Authority” means the Tiger Conservation Authority constituted under Section 38-L;

(b) “Steering Committee” means the Committee constituted under Section 38-U;

(c) “Tiger Conservation Foundation” means the foundation established under Section 38-X;

(d) “tiger reserve State” means a State having tiger reserve;

(e) “tiger reserve” means the areas notified as such under Section 38-V.

38-L. Constitution of National Tiger Conservation Authority.-

(1) The Central Government shall constitute a body to be known as the National Tiger Conservation Authority (hereinafter in this chapter referred to as the Tiger Conservation Authority), to exercise the powers conferred on, and to perform the functions assigned to it under this Act.

(2) The Tiger Conservation Authority shall consist of the following members, namely:-

(a) the Minister in charge of the Ministry of Environment and Forests- Chairperson;

(b) the Minister of State in the Ministry of Environment and Forests-Vice-Chairperson;

(c) three members of Parliament of whom two shall be elected by the House of the People and one by the Council of States;

(d) eight experts or professionals having prescribed qualifications and experience in conservation of wild life and welfare of people living in tiger reserve out of which at least two shall be from the field of tribal development;

(e) Secretary, Ministry of Environment and Forests;

(f) Director-General of Forests and Special Secretary, Ministry of Environment and Forests;

(g) Director, Wild Life Preservation, Ministry of Environment and Forests;

(h) six Chief Wild Life Wardens from the tiger reserve States in rotation for three years;

(i) an officer not below the rank of Joint Secretary and Legislative Counsel from the Ministry of Law and Justice;

(k) Secretary, Ministry of Tribal Affairs;

(l) Chairperson, National Commission for the Scheduled Tribes;

(m) Chairperson, National Commission for the Scheduled Castes;

(n) Secretary, Ministry of Panchayati Raj;

(o) Inspector-General of Forests or an officer of the equivalent rank having at least ten years experience in a tiger reserve or wildlife management, who shall be the Member-Secretary, to be notified by the Central Government, in the Official Gazette.

(3) It is hereby declared that the office of member of the Tiger Conservation Authority shall not disqualify its holder for being chosen as, or for being, a member of either House of Parliament.

38-M. Term of Office and conditions of service of members.-

(1) A member nominated under clause (d) of sub-section (2) of Section 38-L shall hold office for such period not exceeding three years :

Provided that a member may, by writing under his hand addressed to the Central Government, resign from his office.

(2) The Central Government shall remove a member referred to in clause (d) of sub-section (2) of Section 38-L, from office if he-

(a) is, or at any time has been, adjudicated as insolvent;

(b) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude;

(c) is of unsound mind and stands so declared by a competent court;

(d) refuses to act or becomes incapable of acting;

(e) is, without obtaining leave of absence from the Tiger conservation Authority, absent from three consecutive meetings of the said Authority; or

(f) has, in the opinion of the Central Government, so abused his position as to render his continuation in office detrimental to the public interest:

Provided that no member shall be removed under this sub-section unless he has

(3) Any vacancy in the office of a member shall be filled by fresh appointment and such member shall continue for the remainder of the term of the member in whose place he is appointed.

(4) The salaries and allowances and other conditions of appointment of the members of the Tiger Conservation Authority shall be such as may be prescribed.

(5) No act or proceeding of the Tiger Conservation Authority shall be questioned or shall be invalid on the ground merely of the existence of any vacancy or defect in the constitution of the Tiger Conservation Authority.

38-N. Officers and employees of Tiger Conservation Authority.-

(1) The Tiger Conservation Authority may, with the previous sanction of the Central Government, appoint such other officers and employees as it considers necessary for the efficient discharge of its functions under this Act:

Provided that the officers and employees holding office under the Directorate of Project Tiger and dealing with Project Tiger immediately before the date of constitution of the Tiger Conservation Authority shall continue to hold office in the said Authority by the same tenure and upon the same terms and conditions of service or until the expiry of the period of six months from that date if such employee opts not to be the employee of that Authority.

(2) The terms and conditions of service of the officers and other employees of the Tiger Conservation Authority shall be such as may be prescribed.

38-O. Powers and functions of Tiger Conservation Authority.-

(1) The Tiger Conservation Authority shall have the following powers and perform the following functions, namely:-

(a) to approve the Tiger Conservation Plan prepared by the State Government under sub-section (3) of Section 38-V of this Act;

 (b) evaluate and assess various aspect of sustainable ecology and disallow any ecologically unsustainable land use such as, mining, industry and other projects within the tiger reserves;

(c) lay down normative standards for tourism activities and guidelines for project tiger from time to time for tiger conservation in the buffer and core area of tiger reserves and ensure their due compliance;

(d) provide for management focus and measures for addressing conflicts of men and wild animals and to emphasise on co-existence in forest areas outside the National Parks, sanctuaries or tiger reserve, in the working plan code;

(e) provide information on protection measures including future conservation plan, estimation of population of tiger and its natural prey species, status of habitats, disease surveillance, mortality survey, patrolling, reports on untoward happenings and such other management aspects as it may deem fit including future plan conservation;

(f) approve, co-ordinate research and monitoring on tiger, co-predators, prey, habitat, related ecological and socio-economic parameters and their evaluation;

(g) ensure that the tiger reserves and areas linking one protected area or tiger reserve with another protected area or tiger reserve are not diverted for ecologically unsustainable uses, except in public interest and with the approval of the National Board for Wild Life and on the advice of the Tiger Conservation Authority;

(h) facilitate and support the tiger reserve management in the State for biodiversity conservation initiatives through eco-development and people’s participation as per approved management plans and to support similar initiatives in adjoining areas consistent with the Central and State laws;

(i) ensure critical support including scientific, information technology and legal support for better implementation of the tiger conservation plan;

(j) facilitate ongoing capacity building programme for skill development of officers and staff of tiger reserves; and

(k) perform such other functions as may be necessary to carry out the purposes of this Act with regard to conservation of tigers and their habitat.

(2) The Tiger Conservation Authority may, in the exercise of its powers and performance of its functions under this chapter, issue directions in writing to any person, officer of authority for the protection of tiger or tiger reserves and such person, officer or authority shall be bound to comply with the directions :

Provided that no such direction shall interfere with or affect the rights of local people particularly the Scheduled Tribes.

38-P. Procedure to be regulated by Tiger Conservation Authority.

(1) The Tiger Conservation Authority shall meet at such time and at such place as the Chairperson may think fit.

(2) The Chairperson or in his absence the Vice-Chairperson shall preside over the meetings of the Tiger Conservation Authority.

(3) The Tiger Conservation Authority shall regulate its own procedure.

(4) All orders and decisions of the Tiger Conservation. Authority shall be authenticated by the Member-Secretary or any other officer of the said Authority duly authorised by the Member-Secretary in this behalf.

38-Q. Grants and loans to Tiger Conservation Authority and Constitution of Fund.-

(1) The Central Government may, after due appropriation made by Parliament by law in this behalf, make to the Tiger Conservation Authority grants and loans of such sums of money as that Government may consider necessary.

(2) There shall be constituted a Fund to be called the Tiger Conservation Authority Fund and there shall be credited thereto-

(i) any grants and loans made to the Tiger Conservation Authority by the Central Government;

(ii) all fees and charges received by the Tiger Conservation Authority under this Act; and

(iii) all sums received by the Authority from such other sources as may be decided upon by the Central Government.

(3) The Fund referred to in sub-section (2) shall be applied for meeting salary, allowances and other remuneration of the members, officers and other employees of the Tiger Conservation Authority and the expenses of the Tiger Conservation Authority incurred in the discharge of its functions under this chapter.

38-R. Accounts and audit of Tiger Conservation Authority.-

(1) The Tiger Conservation Authority shall 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 in consultation with the Comptroller and Auditor-General of India.

(2) The accounts of the Tiger Conservation Authority shall be audited by the Comptroller and Auditor-General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Tiger Conservation Authority to the Comptroller and Auditor-General of India.

(3) The Comptroller and Auditor-General of India and any other person appointed by him in connection with the audit of the accounts of the Tiger Conservation Authority shall have the same rights and privileges and authority in connection with such audit as the Comptroller and Auditor-General generally has in connection with the audit of the Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect the office of the Tiger Conservation Authority.

(4) The account of the Tiger Conservation Authority as certified by the Comptroller and Auditor-General of India or any other person appointed by him in this behalf together with the audit report thereon, shall be forwarded annually to the Central Government by the Tiger Conservation Authority.

38-S. Annual report of Tiger Conservation Authority.

The Tiger Conservation Authority shall prepare in such form and at such time, for each financial year, as may be prescribed, its annual report, giving a full account of its activities during the previous financial year and forward a copy thereof to the Central Government.

38-T. Annual report and audit report to be laid before Parliament.

The Central Government shall cause the annual report together with a memorandum of action taken on the recommendations contained therein, insofar as they relate to the Central Government, and the reasons for the non-acceptance, if any, of any of such recommendations, and the audit report to be laid, as soon as may be after the reports are received, before each House of Parliament.

38-U. Constitution of Steering Committee.

(1) The State Government may constitute a Steering Committee for ensuring co-ordination, monitoring, protection and conservation of tiger, co-predators and prey animals within the tiger range States.

(2) The Steering Committee shall consists of-

(a) the Chief Minister-Chairperson;

(b) the Minister in-charge of Wild Life-Vice-Chairperson;

(c) such number of official members not exceeding five including at least two Field Directors of tiger reserve or Director of National Park and one from the State Government’s Departments dealing with tribal affairs;

(d) three experts or professionals having qualifications and experience in conservation of wild life of which at least one shall be from the field of tribal development;

(e) two members from the State’s Tribal Advisory Council;

(f) one representative each from State Government’s Departments dealing with Panchayati Raj and Social Justice and Empowerment;

(g) Chief Wild Life Warden of the State shall be the Member-Secretary, ex-officio, to be notified by the State Government, in the Official Gazette.

38-V. Tiger Conservation Plan.-

(1) The State Government shall, on the recommendation of the Tiger Conservation Authority, notify an area as a tiger reserve.

(2) The provisions of sub-section (2) of Section 18, sub-sections (2), (3) and (4) of Section 27, Sections 30, 32 and clauses (b) and (c) of Section 33 of this Act shall, as far as may be, apply in relation to a tiger reserve as they apply in relation to a sanctuary.

(3) The State Government shall prepare a Tiger Conservation Plan including staff development and deployment plan for the proper management of each area referred to in sub-section (1), so as to ensure-

(a) protection of tiger reserve and providing site specific habitat inputs for a viable population of tigers, co-predators and prey animals without distorting the natural prey-predator ecological cycle in the habitat;

(b) ecologically compatible land uses in the tiger reserves and areas linking one protected area or tiger reserve with another for addressing the livelihood concerns of local people, so as to provide dispersal habitats and corridor for spill over population of wild animals from the designated core areas of tiger reserves or from tiger breeding habitats within other protected areas;

(c) the forestry operations of regular forest divisions and those adjoining tiger reserves are not incompatible with the needs of tiger conservation.

(4) Subject to the provisions contained in this Act, the State Government shall, while preparing a Tiger Conservation Plan, ensure the agricultural, livelihood, developmental and other interests of the people living in tiger bearing forests or a tiger reserve.

Explanation.-For the purposes of this section, the expression “tiger reserve” includes,-

(i) core or critical tiger habitat areas of National Parks and sanctuaries, where it has been established, on the basis of scientific and objective criteria, that such areas are required to be kept as inviolate for the purposes of tiger conservation, without affecting the rights of the Scheduled Tribes or such other forest dwellers, and notified as such by the State Government in consultation with an Expert Committee constituted for the purpose;

(ii) buffer or peripheral area consisting of the area peripheral to critical tiger habitat or core area, identified and established in accordance with the provisions contained in Explanation (i) above, where a lesser degree of habitat protection is required to ensure the integrity of the critical tiger habitat with adequate dispersal for tiger species, and which aim at promoting co-existence between wildlife and human activity with due recognition of the livelihood, developmental, social and cultural rights of the local people, wherein the limits of such areas are determined on the basis of scientific and objective criteria in consultation with the concerned Gram Sabha and an Expert Committee constituted for the purpose.

(5) Save as for voluntary relocation on mutually agreed terms and conditions, provided that such terms and conditions satisfy the requirements laid down in this subsection, no Scheduled Tribes or other forest dwellers shall be resettled or have their rights adversely affected for the purpose of creating inviolate areas for tiger conservation unless-

(i) the process of recognition and determination of rights and acquisition of land or forest rights of the Scheduled Tribes and such other forest dwelling persons is complete;

(ii) the concerned agencies of the State Government, in exercise of their powers under this Act, establishes with the consent of the Scheduled Tribes and such other forest dwellers in the area, and in consultation with an ecological and social scientist familiar with the area, that the activities of the Scheduled Tribes and other forest dwellers or the impact of their presence upon wild animals is sufficient to cause irreversible damage and shall threaten the existence of tigers and their habitat;

(iii) the State Government, after obtaining the consent of the Scheduled Tribes and other forest dwellers inhabiting the area, and in consultation with an independent ecological and social scientist familiar with the area, has come to a conclusion that other reasonable options of co-existence, are not available;

(iv) resettlement or alternative package has been prepared providing for livelihood for the affected individuals and communities and fulfils the requirements given in the National Relief and Rehabilitation Policy;

(v) the informed consent of the Gram Sabha concerned, and of the persons affected, to the resettlement programme has been obtained; and

(vi) the facilities and land allocation at the resettlement location are provided under the said programme, otherwise their existing rights shall not be interfered with.

38-W. Alteration and de-notification of tiger reserves.

(1) No alteration in the boundaries of a tiger reserve shall be made except on a recommendation of the Tiger Conservation Authority and the approval of the National Board for Wild Life.

(2) No State Government shall de-notify a tiger reserve, except in public interest with the approval of the Tiger Conservation Authority and the National Board for Wild Life.

38-X. Establishment of Tiger Conservation Foundation.-

(1) The State Government shall establish a Tiger Conservation Foundation for tiger reserves within the State in order to facilitate and support their management for conservation of tiger and biodiversity and, to take initiatives in eco-development by involvement of people in such development process.

(2) The Tiger Conservation Foundation shall, inter alia, have the following objectives:-

(a) to facilitate ecological, economic, social and cultural development in the tiger reserves;

(b) to promote eco-tourism with the involvement of local stake-holder communities and provide support to safeguard the natural environment in the tiger reserves;

(c) to facilitate the creation of, and or maintenance of, such assets as may be necessary for fulfilling the above said objectives;

(d) to solicit technical, financial, social, legal and other support required for the activities of the Foundation for achieving the above said objectives;

(e) to augment and mobilise financial resources including recycling of entry and such other fees received in a tiger reserve, to foster stake-holder development and eco-tourism;

(f) to support research, environmental education and training in the above related fields.

CHAPTER IV-C

TIGER AND OTHER ENDANGERED SPECIES CRIME CONTROL BUREAU

38-Y. Constitution of Tiger and other Endangered Species Crime Control Bureau.

The Central Government may, for the purposes of this Act, by order published in the Official Gazette, constitute a Tiger and other Endangered Species Crime Control Bureau to be known as the Wildlife Crime Control Bureau consisting of-

(a) the Director of Wildlife Preservation-Director ex-officio;

(b) the Inspector-General of Police-Additional Director;

(c) the Deputy Inspector-General of Police-Joint Director;

(d) the Deputy Inspector-General of Forests-Joint Director;

(e) the Additional Commissioner (Customs and Central Excise)-Joint Director; and

(f) such other officers as may be appointed from amongst the officers covered under Sections 3 and 4 of this Act.

38-Z. Powers and functions of the Wildlife Crime Control Bureau.

(1) Subject to the provisions of this Act, the Wildlife Crime Control Bureau shall take measures with respect to-

(i) collect and collate intelligence related to organized wildlife crime activities and to disseminate the same to State and other enforcement agencies for immediate action, so as to apprehend the criminals and to establish a centralised wildlife crime data bank;

(ii) co-ordination of actions by various officers, State Governments and other authorities in connection with the enforcement of the provisions of this Act, either directly or through regional and border units set up by the Bureau;

(iii) implementation of obligations under the various international Conventions and protocols that are in force at present or which may be ratified or acceded to by India in future;

(iv) assistance to concerned authorities in foreign countries and concerned international organisations to facilitate co-ordination and universal action for wildlife crime control;

(v) develop infrastructure and capacity building for scientific and professional investigation into wildlife crimes and assist State Governments to ensure success in prosecutions related to wildlife crimes;

(vi) advice the Government of India on issues relating to wildlife crimes having national and international ramifications, and suggest changes required in relevant policy and laws from time to time.

(2) The Wildlife Crime Control Bureau shall exercise.

(i) such powers as may be delegated to it under sub-section (1) of Section 5, sub-sections (1) and (8) of Section 50 and Section 55 of this Act; and

(ii) such other powers as may be prescribed.

Section 3. Amendment of Section 51

In Section 51 of the principal Act, after sub-section (1-B), the following sub-sections shall be inserted, namely:-

“(1-C) Any person, who commits an offence in relation to the core area of a tiger reserve or where the offence relate to hunting in the tiger reserve or altering the boundaries of the tiger reserve, such offence shall be punishable on first conviction with imprisonment for a term which shall not be less than three years but may extend to seven years, and also with fine which shall not be less than fifty thousand rupees but may extend to two lakh rupees; and in the event of a second or subsequent conviction with imprisonment for a term of not less than seven years and also with fine which shall not be less than five lakh rupees but may extend to fifty lakh rupees.

(1-D) Whoever, abets any offence punishable under sub-section (1-C) shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided for that offence.”.

Section 4. Amendment of Section 55

In Section 55 of the principal Act, after clause {ad), the following clauses shall be inserted, namely:-

“(ab) Member-Secretary, Tiger Conservation Authority; or (ac) Director of the concerned tiger reserve; or”.

Section 5. Amendment of Section 59

In Section 59 of the principal Act, after the word, figures and letter “Chapter IV-A”, the word, figures and letter “Chapter IV-B” shall be inserted.

Section 6. Amendment of Section 60

In Section 60 of the principal Act, in sub-section (3), after the word, figures and letter “Chapter IV-A”, the word, figures and letter “Chapter IV-B” shall be inserted.

Section 7. Amendment of Section 63

In Section 63 of the principal Act, in sub-section (1), after clause (g), the following clauses shall be inserted, namely:-

“(gi) qualifications and experience of experts or professionals under clause (d) of sub-section (2) of Section 38-1;

(gii) the salaries and allowances and other conditions of appointment of the members under sub-section (4) of Section 38-M;

(giii) the terms and conditions of service of the officers and other employees of the Tiger Conservation Authority under sub-section (2) of Section 38-N;

(giv) the form in which the annual statement of accounts of Tiger Conservation Authority shall be prepared under sub-section (1) of Section 38-R;

(gv) the form in which and the time at which the annual report of Tiger Conservation Authority shall be prepared under Section 38-S;

(gvi) other powers of the Wildlife Crime Control Bureau under clause (ii) of subsection (2) of Section 38-Z.”.

Bydeb

The Water (Prevention and Control of Pollution) Act, 1974

PREAMBLE

An Act to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith.

Whereas it is expedient to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a water pollution and for conferring on and assigning to such Boards powers and functions relating thereto;

And whereas Parliament has no power to make laws for the States with respect to any of the matters aforesaid except as provided in Articles 249 and 250 of the Constitution;

And whereas in pursuance of clause (1) of Article 252 of the Constitution resolutions have been passed by all the Houses of the Legislature of the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal to the effect that the matters aforesaid should be regulated in those States by Parliament by law.

Be it enacted by Parliament in the Twenty-fifth Year of the Republic of India as follows :-

1. SHORT TITLE, APPLICATION AND COMMENCEMENT.

An Act to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith.

Whereas it is expedient to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a water pollution and for conferring on and assigning to such Boards powers and functions relating thereto;

And whereas Parliament has no power to make laws for the States with respect to any of the matters aforesaid except as provided in Articles 249 and 250 of the Constitution;

And whereas in pursuance of clause (1) of Article 252 of the Constitution resolutions have been passed by all the Houses of the Legislature of the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal to the effect that the matters aforesaid should be regulated in those States by Parliament by law.

Be it enacted by Parliament in the Twenty-fifth Year of the Republic of India as follows :-

(1) This Act may be called the Water (Prevention and Control of Pollution) Act, 1974.

(2) It applies in the first instance to the whole of the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal and the Union territories; and it shall apply to such other State which adopts this Act by resolution passed in that behalf under clause (1) of Article 252 of the Constitution.

(3) It shall come into force, at once in the State of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal and in the Union territories, and in any other State which adopts this Act under clause (1) of Article 252 of the Constitution on the date of such adoption and any reference in this Act to the commencement of this Act shall, in relation to any State or Union territory mean the date on which this Act comes into force in such State or Union territory.

2. Definitions.—-

In this Act, unless the context otherwise requires,—

(a) “Board” means the Central Board or a State Board;

1[(b) “Central Board” means the Central Pollution Control Board constituted under section 3;]

(c) “member” means a member of a Board and includes the chairman thereof;

2[(d) “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;]

3[(dd) “outlet” includes any conduit pipe or channel, open or closed, carrying sewage or trade effluent or any other holding arrangement which causes, or is likely to cause, pollution;]

(e) “pollution” means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms;

(f) “prescribed” means prescribed by rules made under this Act by the Central Government or, as the case may be, the State Government;

(g) “sewage effluent” means effluent from any sewerage system or sewage disposal works and includes sullage from open drains;

3[(gg) “sewer” means any conduit pipe or channel, open or closed, carrying sewage or trade effluent;]

4[(h) “State Board” means a State Pollution Control Board constituted under section 4;]

(i) “State Government” in relation to a Union territory means the Administrator thereof appointed under article 239 of the Constitution;

(j) “stream” includes—

(i) river;

(ii) water course (whether flowing or for the time being dry);

(iii) inland water (whether natural or artificial);

(iv) sub-terranean waters;

(v) sea or tidal waters to such extent or, as the case may be, to such point as the State Government may, by notification in the Official Gazette, specify in this behalf;

(k) “trade effluent” includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any 5[industry, operation or process, or treatment and disposal system], other than domestic sewage.

———————————

1. Subs. by Act 53 of 1988, sec. 2, for clause (b).

2. Subs. by Act 53 of 1988, sec. 2, for clause (d).

3. Ins. by Act 44 of 1978, sec. 2.

4. Subs. by Act 53 of 1988, sec. 2, for clause (h).

5. Subs. by Act 53 of 1988, sec. 2, for “trade or industry”.

3. Constitution of Central Board.—

(1) The Central Government shall, with effect from such date (being a date not later than six months of the commencement of this Act in the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal and in the Union territories) as it may, by notification in the Official Gazette, appoint, constitute a Central Board to be called the 1[Central Pollution Control Board] to exercise the powers conferred on and perform the functions assigned to that Board under this Act.

(2) The Central Board shall consist of the following members, namely:—

(a) a full-time chairman, being a person having special knowledge or practical experience in respect of 2[matters relating to environmental protection] or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the Central Government;

(b) 3[such number of officials, not exceeding five,] to be nominated by the Central Government to represent that Government;

(c) such number of persons, not exceeding five to be nominated by the Central Government, from amongst the members of the State Boards, of whom not exceeding two shall be from those referred to in clause (c) of sub-section (2) of section 4;

(d)4[such number of non-officials, not exceeding three,] to be nominated by the Central Government, to represent the interests of agriculture, fishery or industry or trade or any other interest which, in the opinion of the Central Government, ought to be represented;

(e) two persons to represent the companies or corporations owned, controlled or managed by the Central Government, to be nominated by that Government;

5[(f) a full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the Central Government.]

(3) The Central Board shall be a body corporate with the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and to contract, and may, by the aforesaid name, sue or be sued.

COMMENTS

Power of Parliament

The Parliament, if it so wishes, can review the matter and amend the Act suitably so that there is no ambiguity between the intent of the law and its interpretation; Dr. C.S. Subramaniam v. Kumaraswamy, (1994) 3 CPR 433.

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1. Subs. by Act 53 of 1988, sec. 3, for “Central Board for the Prevention and Control of Water Pollution” (w.e.f. 29-9-1988).

2. Subs. by Act 44 of 1978, sec. 3, for certain words.

3. Subs. by Act 44 of 1978, sec. 3, for “five officials”.

4. Subs. by Act 44 of 1978, sec. 3, for “three non-officials”.

5. Subs. by Act 53 of 1988, sec. 3, for clause (f).

4. Constitution of State Boards.—

(1) The State Government shall, with effect from such date 1[***] as it may, by notification in the Official Gazette, appoint, constitute a 2[State Pollution Control Board], 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 shall consist of the following members, namely:—

(a) a 3[***] chairman, being a person having special knowledge or practical experience in respect of 4[matters relating to environmental protection] or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the State Government:

5[Provided that the chairman may be either whole-time or part-time as the State Government may think fit;]

(b) 6[such number of officials, not exceeding five,] to be nominated by the State Government to represent that Government;

(c) 7[such number of persons, not exceeding five,] to be nominated by the State Government from amongst the members of the local authorities functioning within the State;

(d) 8[such number of non-officials, not exceeding three,] to be nominated by the State Government to represent the interests of agriculture, fishery or industry or trade or any other interest which, in the opinion of the State 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, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the State Government.]

(3) Every State Board shall be a body corporate with the name specified by the State Government in the notification under sub-section (1), having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and to contract, and may, by the said name, sue or be sued.

(4) Notwithstanding anything contained in this section, 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 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 sub-section to such person or body of persons as the Central Government may specify.

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1. Certain words omitted by Act 44 of 1978, sec. 4.

2. Subs. by Act 53 of 1988, sec. 4, for “State Board” (w.e.f. 29-9-1988).

3. The word “full-time” omitted by Act 44 of 1978, sec. 4.

4. Subs. by Act 44 of 1978, sec. 4, for certain words.

5. Ins. by Act 44 of 1978, sec. 4.

6. Subs. by Act 44 of 1978, sec. 4, for “five officials.

7. Subs. by Act 44 of 1978, sec. 4, for “five persons”.

8. Subs. by Act 44 of 1978, sec. 4, for “three non-officials”.

9. Subs. by Act 53 of 1988, sec. 4, for clause (f).

5. Terms and conditions of service of members.—

(1) Save as otherwise provided by or under this Act, a member of a Board, other than a member-secretary, shall hold office for a term of three years from the date of his nomination:

Provided that a member shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.

1[(2) The term of office of a member of a Board nominated under clause (b) or clause (e) of sub-section (2) of section 3 or clause (b) or clause (e) of sub-section (2) of section 4 shall come to an end as soon as he ceases to hold the office under the Central Government or the State Government or, as the case may be, the company or corporation owned, controlled or managed by the Central Government or the State Government, by virtue of which he was nominated.]

(3) The Central Government or, as the case may be, the State Government may, if it thinks fit, remove any member of a Board before the expiry of his term of office, after giving him a reasonable opportunity of showing cause against the same.

(4) A member of a Board, 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 Central Government or, as the case may be, the State Government; and

(b) in any other case, to the chairman of the Board, and the seat of the chairman or such other member shall thereupon become vacant.

(5) A member of a Board, 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 Board, from three consecutive meetings of the Board, 2[or where he is nominated under clause (c) or clause (e) of sub-section (2) of section 3 or under clause (c) or clause (e) of sub-section (2) of section 4, if he ceases to be a member of the State Board or of the local authority or, as the case may be, of the company or corporation owned, controlled or managed by the Central Government or the State Government and such vacation of seat shall, in either case, take effect from such date as the Central Government or, as the case may be, the State Government may, by notification in the Official Gazette, specify.]

(6) A casual vacancy in a Board 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 in whose place he was nominated.

(7) A member of a Board 3[shall be eligible for re-nomination.]

(8) The other terms and conditions of service of a member of a Board, other than the chairman and member-secretary, shall be such as may be prescribed.

(9) The other terms and conditions of service of the chairman shall be such as may be prescribed.

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1. Subs. by Act 44 of 1978, sec. 5, for sub-section (2).2. Subs. by Act 44 of 1978, sec. 5, for certain words.

3. Subs. by Act 53 of 1988, sec. 5, for “shall not be eligible for renomination for more than two terms” (w.e.f. 29-9-1988).

6. Disqualifications.—

(1) No person shall be a member of Board, who—

(a) is, or at any time has been adjudged insolvent or has suspended payment of his debts or has compounded with his creditors, or

(b) is of unsound mind and stands so declared by a competent court, or

(c) is, or has been, convicted of an offence which, in the opinion of the Central Government or, as the case may be, of the State Government, involves moral turpitude, or

(d) is, or at any time has been, convicted of an offence under this Act, or

(e) 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, plant, equipment, apparatus or fittings for the treatment of a sewage or trade effluents, 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 sewerage schemes or for the installation of plants for the treatment of sewage or trade effluents, or

(g) has so abused, in the opinion of the Central Government or as the case may be, of the State Government, his position as a member, as to render his continuance on the Board detrimental to the interest of the general public.

(2) No order of removal shall be made by the Central Government or the State Government, as the case may be, 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-sections (1) and (7) of section 5, a member who has been removed under this section shall not be eligible for renomination as a member.

7. Vacation of seats by members.—

If a member of a Board becomes subject to any of the disqualifications specified in section 6, his seat shall become vacant.

8. Meetings of Boards.—

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 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.

9. Constitution of committees.—

(1) A Board may constitute as many committees consisting wholly of members or wholly of other persons 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.

10. 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 not have a right to vote at a meeting of the Board, and shall not be a member for any other purpose.

1[(3) A person associated with the Board under sub-section (1) for any purpose 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.]

1. Ins. by Act 44 of 1978, sec. 6.

11. 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.

11A. Delegation of powers to Chairman.—

1[11A. Delegation of powers to Chairman.—The Chairman of a Board 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 Board.]

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1. Ins. by Act 44 of 1978, sec. 7.

12. Member-secretary and officers and other employees of Board.—

(1) The terms and conditions of service of the member-secretary shall be such as may be prescribed.

(2) The member-secretary 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 Board or its chairman.

(3) Subject to such rules as may be made by the Central Government or, as the case may be, the State Government in this behalf, a Board may appoint such officers and employees as it considers necessary for the efficient performance of its functions 1[***].

2[(3A) The method of recruitment and the terms and conditions of service (including the scales of pay) of the officers (other than the member-secretary) and other employees of the Central Board or a State Board shall be such as may be determined by regulations made by the Central Board or, as the case may be, by the State Board:

Provided that no regulation made under this sub-section shall take effect unless,—

(a) in the case of a regulation made by the Central Board, it is approved by the Central Government; and

(b) in the case of a regulation made by a State Board, it is approved by the State Government.]

3[(3B) The Board may, by general or special order, and subject to such conditions and limitations, if any, as may be specified in the order, delegate to any officer of the Board such of its powers and functions under this Act as it may deem necessary.]

(4) Subject to such conditions as may be prescribed, a Board may from time to time appoint any qualified person to be a consulting engineer to the Board and pay him such salaries and allowances and subject him to such other terms and conditions of service as it thinks fit.

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1. Certain words omitted by Act 44 of 1978, sec. 8.

2. Ins. by Act 44 of 1978, sec. 8.

3. Ins. by Act 53 of 1988, sec. 6 (w.e.f. 29-9-1988).

13. Constitution of Joint Boards.—

(1) Notwithstanding anything contained in this Act, an agreement may be entered into—

(a) by two or more Governments of contiguous States, or

(b) by the Central Government (in respect of one or more Union territories) and one or more Governments of States contiguous to such Union territory or Union territories, to be in force for such period and to be subject to renewal for such further period, if any, as may be specified in the agreement to provide for the constitution of a Joint Board,—

(i) in a case referred to in clause (a), for all the participating States, and

(ii) in a case referred to in clause (b), for the participating Union territory or Union territories and the State or States.

(2) An agreement under this section may—

(a) provide, in a case referred to in clause (a) of sub-section (1), for the apportionment between the participating States and in a case referred to in clause (b) of that sub-section, for the apportionments between the Central Government and the participating State Government or State Governments, of the expenditure in connection with the Joint Board;

(b) determine, in a case referred to in clause (a) of sub-section (1), which of the participating State Governments and in a case referred to in clause (b) of that sub-section, whether the Central Government or the participating State Government (if there are more than one participating State, also which of the participating State Governments) shall exercise and perform the several powers and functions of the State Government under this Act and the references in this Act to the State Government shall be construed accordingly;

(c) provide for consultation, in a case referred to in clause (a) of sub-section (1), between the participating State Governments and in a case referred to in clause (b) of that sub-section, between the Central Government and the participating State Government or State Governments either generally or with reference to particular matters arising under this Act;

(d) make such incidental and ancillary provisions, not inconsistent with this Act, as may be deemed necessary or expedient for giving effect to the agreement.

(3) An agreement under this section shall be published, in a case referred to in clause (a) of sub-section (1), in the Official Gazette of the participating States and in a case referred to in cause (b) of that sub-section, in the Official Gazette of the participating Union territory or Union territories and participating State or States.

COMMENTS

Object

A Joint Board can be constituted by an agreement (a) either by two or more Governments of contiguous States; (b) or by the Central Government (in respect of one or more Union territories) and one or more Governments of States contiguous to such Union territory or Union territories.

14. Composition of Joint Boards.—

(1) A Joint Board constituted in pursuance of an agreement entered into under clause (a) of sub-section (1) of section 13 shall consist of the following members, namely:—

(a) a full-time chairman, being a person having special knowledge or practical experience in respect of 1[matters relating to environmental protection] or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the Central Government;

(b) two officials from each of the participating States to be nominated by the concerned participating State Government to represent that Government;

(c) one person to be nominated by each of the participating State Governments from amongst the members of the local authorities functioning within the State concerned;

(d) one non-official to be nominated by each of the participating State Governments to represent the interests of agriculture, fishery or industry or trade in the State concerned or any other interest which, in the opinion of the participating State Government, is to be represented;

(e) two persons to be nominated by the Central Government to represent the companies or corporations owned, controlled or managed by the participating State Governments;

2[(f) a full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the Central Government.]

(2) A Joint Board constituted in pursuance of an agreement entered into under clause (b) of sub-section (1) of section 13 shall consist of the following members, namely:—

(a) a full-time chairman, being a person having special knowledge or practical experience in respect of 3[matters relating to environmental protection] or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the Central Government;

(b) two officials to be nominated by the Central Government from the participating Union territory or each of the participating Union territories, as the case may be, and two officials to be nominated, from the participating State or each of the participating States, as the case may be, by the concerned participating State Government;

(c) one person to be nominated by the Central Government from amongst the members of the local authorities functioning within the participating Union territory or each of the participating Union territories, as the case may be, and one person to be nominated, from amongst the members of the local authorities functioning within the participating State or each of the participating States, as the case may be, by the concerned participating State Government;

(d) one non-official to be nominated by Central Government and one person to be nominated by the participating State Government or State Governments to represent the interests of agriculture, fishery or industry or trade in the Union territory or in each of the Union territories or the State or in each of the States, as the case may be, or any other interest which in the opinion of the Central Government or, as the case may be, of the State Government is to be represented;

(e) two persons to be nominated by the Central Government to represent the companies or corporations owned, controlled or managed by the Central Government and situate in the participating Union territory or territories and two persons to be nominated by the Central Government to represent the companies or corporations owned, controlled or managed by the participating State Governments;

4[(f) a full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the Central Government.]

(3) When a Joint Board is constituted in pursuance of an agreement under clause (b) of sub-section (1) of section 13, the provisions of sub-section (4) of section 4 shall cease to apply in relation to the Union territory for which the Joint Board is constituted.

(4) Subject to the provisions of sub-section (3), the provisions of sub-section (3) of section 4 and sections 5 to 12 (inclusive) shall apply in relation to the Joint Board and its member-secretary as they apply in relation to a State Board and its member-secretary.

(5) Any reference in this Act to the State Board shall, unless the context otherwise requires, be construed as including a Joint Board.

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1. Subs. by Act 44 of 1978, sec. 9, for certain words.

2. Subs. by Act 53 of 1988, sec. 7, for clause (f) (w.e.f. 29-9-1988).

3. Subs. by Act 44 of 1978, sec. 9, for certain words.

4. Subs. by Act 53 of 1988, sec. 7, for clause (f) (w.e.f. 29-9-1988).

15. Special provision relating to giving of directions.—

Notwithstanding anything contained in this Act where any Joint Board is constituted under section 13,—

(a) the Government of the State for which the Joint Board is constituted shall be competent to give any direction under this Act only in cases where such direction relates to a matter within the exclusive territorial jurisdiction of the State;

(b) the Central Government alone shall be competent to give any direction under this Act where such direction relates to a matter within the territorial jurisdiction of two or more States or pertaining to a Union territory.

16. Functions of Central Board.—

(1) Subject to the provisions of this Act, the main function of the Central Board shall be to promote cleanliness of streams and wells in different areas of the States.

(2) In particular and without prejudice to the generality of the foregoing function, the Central Board may perform all or any of the following functions, namely:—

(a) advise the Central Government on any matter concerning the prevention and control of water pollution;

(b) co-ordinate the activities of the State Boards and resolve disputes among them;

(c) provide technical assistance and guidance to the State Boards, carry out and sponsor investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution;

(d) plan and organise the training of persons engaged or to be engaged in programmes for the prevention, control or abatement of water pollution on such terms and conditions as the Central Board may specify;

(e) organise through mass media a comprehensive programme regarding the prevention and control of water pollution;

1[(ee) perform such of the functions of any State Board as may be specified in an order made under sub-section (2) of section 18;]

 (f) collect, compile and publish technical and statistical data relating to water pollution and the measures devised for its effective prevention and control and prepare manuals, codes or guides relating to treatment and disposal of sewage and trade effluents and disseminate information connected therewith;

(g) lay down, modify or annul, in consultation with the State Government concerned, the standards for a stream or well:

Provided that different standards may be laid down for the same stream or well or for different streams or wells, having regard to the quality of water, flow characteristics of the stream or well and the nature of the use of the water in such stream or well or streams or wells;

(h) plan and cause to be executed a nation-wide programme for the prevention, control or abatement of water pollution;

(i) perform such other functions as may be prescribed.

(3) The Board may establish or recognize a laboratory or laboratories to enable the Board to perform its functions under this section efficiently, including the analysis of samples of water from any stream or will or of samples of any sewage or trade effluents.

COMMENTS

Object

Main functions of the Central Board shall be to promote cleanliness of streams and wells in different areas of the States. It may perform all or any of the functions mentioned in clauses (a) to (i) of sub-section (2), and it may establish or recognise a laboratory or laboratories for the purpose mentioned in sub-section (3).

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1. Ins. by Act 53 of 1988, sec. 8 (w.e.f. 29-9-1988).

17. Functions of State Board.—

(1) Subject to the provisions of this Act, the functions of a State Board shall be—

(a) to plan a comprehensive programme for the prevention, control or abatement of pollution of streams and wells in the State and to secure the execution thereof;

(b) to advise the State Government on any matter concerning the prevention, control or abatement of water pollution;

(c) to collect and disseminate information relating to water pollution and the prevention, control or abatement thereof;

(d) to encourage, conduct and participate investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution;

(e) to collaborate with the Central Board in organizing the training of persons engaged or to be engaged in programmes relating to prevention, control or abatement of water pollution and to organise mass education programmes relating thereto;

(f) to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data relating to plants set up for the treatment of water, works for the purification thereof and the system for the disposal of sewage or trade effluents or in connection with the grant of any consent as required by this Act;

(g) to lay down, modify or annul effluent standards for the sewage and trade effluents and for the quality of receiving waters (not being water in an inter-State stream) resulting from the discharge of effluents and to classify waters of the State;

(h) to evolve economical and reliable methods of treatment of sewage and trade effluents, having regard to the peculiar conditions of soils, climate and water resources of different regions and more especially the prevailing flow characteristics of water in streams and wells which render it impossible to attain even the minimum degree of dilution;

(i) to evolve methods of utilisation of sewage and suitable trade effluents in agriculture;

(j) to evolve efficient methods of disposal of sewage and trade effluents on land, as are necessary on account of the predominant conditions of scant stream flows that do not provide for major part of the year the minimum degree of dilution;

(k) to lay down standards of treatment of sewage and trade effluents to be discharged into any particular stream taking into account the minimum fair weather dilution available in that stream and the tolerance limits of pollution permissible in the water of the stream, after the discharge of such effluents;

(l) to make, vary or revoke any order—

(i) for the prevention, control or abatement of discharges of waste into streams or wells;

(ii) requiring any person concerned to construct new systems for the disposal of sewage and trade effluents or to modify, alter or extend any such existing system or to adopt such remedial measures as are necessary to prevent, control or abate water pollution;

(m) to lay down effluent standards to be complied with by persons while causing discharge of sewage or sullage or both and to lay down, modify or annul effluent standards for the sewage and trade effluents;

(n) to advise the State Government with respect to the location of any industry the carrying on of which is likely to pollute a stream or well;

(o) 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.

(2) The Board may establish or recognise a laboratory or laboratories to enable the Board to perform its functions under this section efficiently, including the analysis of samples of water from any stream or well or of samples of any sewage or trade effluents.

18. Powers to give directions.—

1[(1)] 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.

2[(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 may, 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.]

COMMENTS

Scope

In the performance of its functions (i) the Central Board shall be bound by directions of the Central Government; (ii) a State Board shall be bound by directions of the State Government, subject to certain contingencies.

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1. Section 18 re-numbered as sub-section (1) thereof by Act 53 of 1988, sec. 9 (w.e.f. 29-9-1988).

2. Ins. by Act 53 of 1988, sec. 9 (w.e.f. 29-9-1988).

19. Power of State Government to restrict the application of the Act to certain areas.—

(1) Notwithstanding anything contained in this Act, if the State Government, after consultation with, or on the recommendation of, the State Board, is of opinion that the provisions of this Act need not apply to entire State, it may, by notification in the Official Gazette, restrict the application of this Act to such area or areas as may be declared therein as water pollution, prevention and control area or areas and thereupon the provisions of this Act shall apply only to such area or areas.

(2) Each water pollution, prevention and control area may be declared either by reference to a map or by reference to the line of any watershed or the boundary of any district or partly by one method and partly by another.

(3) The State Government may, by notification in the Official Gazette,—

(a) alter any water pollution, prevention and control area whether by way of extension or reduction; or

(b) define a new water pollution, prevention and control area in which may be merged one or more water pollution, prevention and control areas, or any part or parts thereof.

COMMENTS

Scope

The State Government is of the opinion that the provisions of this Act need not apply to the entire State, it may restrict the application of this Act to such area or areas as may be declared as water pollution, prevention and control area or areas. The State Government is also empowered to alter any area or define a new area.

20. Power to obtain information.—

(1) For the purpose of enabling a State Board to perform the functions conferred on it by or under this Act, the State Board or any officer empowered by it in that behalf, may make surveys of any area and gauge and keep records of the flow or volume and other characteristics of any stream or well in such area, and may take steps for the measurement and recording of the rainfall in such area or any part thereof and for the installation and maintenance for those purposes of gauges or other apparatus and works connected therewith, and carry out stream surveys and may take such other steps as may be necessary in order to obtain any information required for the purposes aforesaid.

(2) A State Board may give directions requiring any person who in its opinion is abstracting water from any such stream or well in the area in quantities which are substantial in relation to the flow or volume of that stream or well or is discharging sewage or trade effluent into any such stream or well, to give such information as to the abstraction or the discharge at such times and in such form as may be specified in the directions.

(3) Without prejudice to the provisions of sub-section (2), a State Board may, with a view to preventing or controlling pollution of water, give directions requiring any person in charge of any establishment where any 1[industry, operation or process, or treatment and disposal system] is carried on, to furnish to it information regarding the construction, installation or operation of such establishment or of any disposal system or of any extension or addition thereto in such establishment and such other particulars as may be prescribed.

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1. Subs. by Act 53 of 1988, sec. 10, for “industry or trade” (w.e.f. 29-9-1988).

21. Power to take samples of effluents 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 water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from or over any place into any such stream or well.

(2) The result of any analysis of a sample of any sewage or trade effluent taken under sub-section (1) shall not be admissible in evidence in any legal proceeding unless the provisions of sub-sections (3), (4) and (5) are complied with.

(3) Subject to the provisions of sub-sections (4) and (5), when a sample (composite or otherwise as may be warranted by the process used) of any sewage or trade effluent is taken for analysis under sub-section (1), the person taking the sample shall—

(a) serve on the person in charge of, or having control over, the plant or vessel or in occupation of the place (which person is hereinafter referred to as the occupier) or any agent of such occupier, 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, divide the sample into two parts;

(c) cause each part to be placed in a container 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 one container forthwith,—

(i) in a case where such sample is taken from any area situated in a Union territory, to the laboratory established or recognised by the Central Board under section 16; and

(ii) in any other case, to the laboratory established or recognised by the State Board under section 17;

(e) on the request of the occupier or his agent, send the second container,—

(i) in a case where such sample is taken from any area situated in a Union territory, to the laboratory established or specified under sub-section (1) of section 51; and

(ii) in any other case, to the laboratory established or specified under sub-section (1) of section 52.

1[(4) When a sample of any sewage or trade affluent 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) and the occupier or his agent wilfully absents himself, then,—

(a) the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be, of clause (e) of sub-section (3) and such person shall inform the Government analyst appointed under sub-section (1) or sub-section (2), as the case may be, of section 53, in writing about the wilful absence of the occupier or his agent; and

(b) the cost incurred in getting such sample analysed shall be payable by the occupier or his agent and in case of default of such payment, the same shall be recoverable from the occupier or his agent, as the case may be, as an arrear of land revenue or of public demand:

Provided that no such recovery shall be made unless the occupier or, as the case may be, his agent has been given a reasonable opportunity of being heard in the matter.]

(5) When a sample of any sewage or trade effluent 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) and the occupier or his agent who is present at the time of taking the sample does not make a request for dividing the sample into two parts as provided in clause (b) of sub-section (3), then, the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be, of clause (d) of sub-section (3).

COMMENTS

Admissibility of sample

The sample must be lifted in accordance with the provisions of section 21 of the Act when only its analysis could be admissible in evidence; Delhi Bottling Co. Pvt. Ltd. v. C.P.C. Board, AIR 1986 Del 152.

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1. Subs. by Act 44 of 1978, sec. 10, for sub-section (4).

22. Reports of the result of analysis on samples taken under section 21.—

(1) Where a sample of any sewage or trade effluent has been sent for analysis to the laboratory established or recognised by the Central Board or, as the case may be, the State Board, the concerned Board analyst appointed under sub-section (3) of section 53 shall analyse the sample and submit a report in the prescribed form of the result of such analysis in triplicate to the Central Board or the State Board as the case may be.

(2) On receipt of the report under sub-section (1), one copy of the report shall be sent by the Central Board or the State Board, as the case may be, to the occupier or his agent referred to in section 21, 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 concerned Board.

(3) Where a sample has been sent for analysis under clause (e) of sub-section (3) or sub-section (4) of section 21 to any laboratory mentioned therein, the Government analyst referred to in that sub-section shall analyse the sample and submit a report in the prescribed form of the result of the analysis in triplicate to the Central Board or, as the case may be, the State Board which shall comply with the provisions of sub-section (2).

(4) If there is any inconsistency or discrepancy between, or variation in the results of, the analysis carried out by the laboratory established or recognised by the Central Board or the State Board, as the case may be, and that of the laboratory established or specified under section 51 or section 52, as the case may be, the report of the latter shall prevail.

(5) Any cost incurred in getting any sample analysed at the request of the occupier or his agent 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.

COMMENTS

Scope

The concerned Board analyst is bound to analyse the sample sent to him and to submit a report of the result of analysis to the concerned Board. The concerned Board is required to send a copy of the report to the occupier or his agent. If there is any inconsistency or discrepancy or variation, in the results of the analysis carried out by different laboratories, the report of laboratory established or specified under section 51, or, as the case may be, section 52, shall prevail.

23. 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 at any time to enter, with such assistance as he considers necessary, any place—

(a) for the purpose of performing any of the functions of the 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 any 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 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 this Act or the rules made thereunder:

Provided that the right to enter under this sub-section for the inspection of a well shall be exercised only at reasonable hours in a case where such well is situated in any premises used for residential purposes and the water thereof is used exclusively for domestic purposes.

(2) The provisions of 1[the Code of Criminal Procedure, 1973 (2 of 1974)], or, in relation to the State of Jammu and Kashmir, the provisions of any corresponding law in force in that State, 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 2[section 94] of the said Code, or, as the case may be, under the corresponding provisions of the said law.

Explanation.—For the purposes of this section, “place” includes vessel.

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1. Subs. by Act 44 of 1978, sec. 11, for “Code of Criminal Procedure, 1898 (5 of 1898)”.

2. Subs. by Act 44 of 1978, sec. 11, for “section 98”.

24. Prohibition on use of stream or well for disposal of polluting matter, etc.—

(1) Subject to the provisions of this section,—

(a) no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any 1[stream or well or sewer or on land]; or

(b) no person shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences.

(2) A person shall not be guilty of an offence under sub-section (1), by reason only of having done or caused to be done any of the following acts, namely:—

(a) constructing, improving or maintaining in or across or on the bank or bed of any stream any building, bridge, weir, dam, sluice, dock, pier, drain or sewer or other permanent works which he has a right to construct, improve or maintain;

(b) depositing any materials on the bank or in the bed of any stream for the purpose of reclaiming land or for supporting, repairing or protecting the bank or bed of such stream provided such materials are not capable of polluting such stream;

(c) putting into any stream any sand or gravel or other natural deposit which has flowed from or been deposited by the current of such stream;

(d) causing or permitting, with the consent of the State Board, the deposit accumulated in a well, pond or reservoir to enter into any stream.

(3) The State Government may, after consultation with, or on the recommendation of, the State Board, exempt, by notification in the Official Gazette, any person from the operation of sub-section (1) subject to such conditions, if any, as may be specified in the notification and any condition so specified may by a like notification be altered, varied or amended.

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1. Subs. by Act 53 of 1988, sec. 11, for “stream or well” (w.e.f. 29-9-1988).

26. Provision regarding existing discharge of sewage or trade effluent.—

Where immediately before the commencement of this Act any person was discharging any sewage or trade effluent into a 1[stream or well or sewer or on land], the provisions of section 25 shall, so far as may be, apply in relation to such person as they apply in relation to the person referred to in that section subject to the modification that the application for consent to be made under sub-section (2) of that section 2[shall be made on or before such date as may be specified by the State Government by notification in this behalf in the Official Gazette].

COMMENTS

Scope

Unless place of discharge like stream, well or sewerage or land is specified in the complaint it will not attract the penal section 26 of the Act; [N.P.N. Nachiammal Achi v. G. Rangasamy, Member-Secretary, T.N. Pollution Control Board, (1995)1 Crimes 134 (Mad.)]

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1. Subs. by Act 44 of 1978, sec. 13, for “stream or well.”

2. Subs. by Act 44 of 1978, sec. 13, for certain words.

27. Refusal or withdrawal of consent by State Board.—

1[(1) A State Board shall not grant its consent under sub-section (4) of section 25 for the establishment of any industry, operation or process, or treatment and disposal system or extension or addition thereto, or to the bringing into use of a new or altered outlet unless the industry, operation or process, or treatment and disposal system or extension or addition thereto, or the outlet is so established as to comply with any conditions imposed by the Board to enable it to exercise its right to take samples of the effluent.]

2[(2) A State Board may from time to time review—

3[(a) any condition imposed under section 25 or section 26 and may serve on the person to whom a consent under section 25 or section 26 is granted a notice making any reasonable variation of or revoking any such condition;]

(b) the refusal of any consent referred to in sub-section (1) of section 25 or section 26 or the grant of such consent without any condition, and may make such orders as it deems fit.]

(3) Any condition imposed under section 25 or section 26 shall be subject to any variation made under sub-section (2) and shall continue in force until revoked under that sub-section.

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1. Subs. by Act 53 of 1988, sec. 13, for sub-section (1) (w.e.f. 29-9-1988).

2. Subs. by Act 44 of 1978, sec. 14, for sub-section (2).

3. Subs. by Act 53 of 1988, sec. 13, for clause (a) (w.e.f. 29-9-1988).

28. Appeals.—

(1) 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.

1[(2) An appellate authority shall consist of a single person or three persons as the State Government may think fit, to be appointed by that Government.]

(3) The form and 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.

(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.

(5) If the appellate authority determines that any condition imposed, or the variation of any condition, as the case may be, was unreasonable, then,—

(a) where the appeal is in respect of the unreasonableness of any condition imposed, such authority may direct either that the condition shall be treated as annulled or that there shall be substituted for it such condition as appears to it to be reasonable;

(b) where the appeal is in respect of the unreasonableness of any variation of a condition, such authority may direct either that the condition shall be treated as continuing in force unvaried or that it shall be varied in such manner as appears to it to be reasonable.

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1. Subs. by Act 44 of 1978, sec. 15, for sub-section (2).

29. Revision.—

(1) The State Government may at any time either of its own motion or on an application made to it in this behalf, call for the records of any case where an order has been made by the State Board under section 25, section 26 or section 27 for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it may think fit:

Provided that the State Government shall not pass any order under this sub-section without affording the State Board and the person who may be affected by such order a reasonable opportunity of being heard in the matter.

(2) The State Government shall not revise any order made under section 25, section 26, or section 27 where an appeal against that order lies to the appellate authority, but has not been preferred or where an appeal has been preferred such appeal is pending before the appellate authority.

COMMENTS

Limitation

Revision lies against an order which has been made by the State Board under section 25, section 26 or section 27, to the State Government. No period of limitation is prescribed for filing a revision application. Revision is not a right given to a party but is only a power conferred on the authority, which that authority may or may not exercise on the facts and circumstances of the case; Balkishan v. Union of India, (1994) 3 SLJ (CAT) 440.

30. Power of State Board to carry out certain works.—

1[(1) Where under this Act, any conditions have been imposed on any person while granting consent under section 25 or section 26 and such conditions require such person to execute any work in connection therewith and such work has not been executed within such time as may be specified in this behalf, the State Board may serve on the person concerned a notice requiring him within such time (not being less than thirty days) as may be specified in the notice to execute the work specified therein.]

(2) If the person concerned fails to execute the work as required in the notice referred to in sub-section (1), then, after the expiration of the time specified in the said notice, the State Board may itself execute or cause to be executed such work.

(3) All expenses incurred by the State Board for the execution of the aforesaid work, together with interest, at such 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 from the person concerned, as arrears of land revenue, or of public demand.

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1. Subs. by Act 53 of 1988, sec. 14, for sub-section (1) (w.e.f. 29-9-1988).

31. Furnishing of information to State Board and other agencies in certain cases.—

1[(1) If at any place where any industry, operation or process, or any treatment and disposal system or any extension or addition thereto is being carried on, due to accident or other unforeseen act or event, any poisonous, noxious or polluting matter is being discharged, or is likely to be discharged into a stream or well or sewer or on land and, as a result of such discharge, the water in any stream or well is being polluted, or is likely to be polluted, then the person in charge of such place shall forthwith intimate the occurrence of such accident, act or event to the State Board and such other authorities or agencies as may be prescribed.]

(2) Where any local authority operates any sewerage system or sewage works, the provisions of sub-section (1) shall apply to such local authority as they apply in relation to the person in charge of the place where any industry or trade is being carried on..

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1. Subs. by Act 53 of 1988, sec. 15, for sub-section (1) (w.e.f. 29-9-1988)

32. Emergency measures in case of pollution of stream or well.—

(1) Where it appears to the State Board that any poisonous, noxious or polluting matter is present in 1[any stream or well or on land by reason of the discharge of such matter in such stream or well or on such land] or has entered into that stream or well due to any accident or other unforeseen act or event, and if the Board is of opinion that it is necessary or expedient to take immediate action, it may for reasons to be recorded in writing, carry out such operations, as it may consider necessary for all or any of the following purposes, that is to say,—

(a) removing that matter from the 2[stream or well or on land] and disposing it of in such manner as the Board considers appropriate;

(b) remedying or mitigating any pollution caused by its presence in the stream or well;

(c) issuing orders immediately restraining or prohibiting the person concerned from discharging any poisonous, noxious or polluting matter 3[into the stream or well or on land] or from making insanitary use of the stream or well.

(2) The power conferred by sub-section (1) does not include the power to construct any works other than works of a temporary character which are removed on or before the completion of the operations.

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1. Subs. by Act 53 of 1988, sec. 16, for “any stream or well” (w.e.f. 29-9-1988).

2. Subs. by Act 53 of 1988, sec. 16, for “stream or well” (w.e.f. 29-9-1988).

3. Subs. by Act 53 of 1988, sec. 16, for “into the stream or well” (w.e.f. 29-9-1988).

33. Power of Board to make application to courts for restraining apprehended pollution of water in streams or wells.—

1[(1) Where it is apprehended by a Board that the water in any stream or well is likely to be polluted by reason of the disposal or likely disposal of any matter in such stream or well or in any sewer or on any land, or otherwise, 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 the person who is likely to cause such pollution from so causing.]

(2) On receipt of an 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 polluting the water in any stream or well, it may in that order—

(i) direct the person who is likely to cause or has caused the pollution of the water in the stream or well, to desist from taking such action as is likely to cause pollution or, as the case may be, to remove from such stream or well, such matter, and

(ii) authorise the Board, if the direction under clause (i) (being a direction for the removal of any matter from such stream or well) is not complied with by the person to whom such direction is issued, to undertake the removal and disposal of the matter in such manner as may be specified by the court.

(4) All expenses incurred by the Board in removing any matter in pursuance of the authorisation under clause (ii) of sub-section (3) or in the disposal of any such matter may be defrayed out of any money obtained by the Board from such disposal and any balance outstanding shall be recoverable from the person concerned as arrears of land revenue or of public demand.

Comments

Scope

Where it is apprehended by a Board that the water in any stream or well is likely to be polluted by reason of the disposal or likely disposal of any matter in such stream or well or in any sewer or on any land, or otherwise, the Board can make an application to a court, not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class, for restraining the person who is likely to cause such pollution from so causing.

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1. Subs. by Act 53 of 1988, sec. 17, for sub-section (1) (w.e.f. 29-9-1988).

33A. Power to give directions.—

1[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—

(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) the stoppage or regulation of supply of electricity, water or any other service.]

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1. Ins. by Act 53 of 1988, sec. 18 (w.e.f. 29-9-1988).

34. Contributions 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 Central Board as it may think necessary to enable the Board to perform its functions under this Act.

35. Contributions by State Government.—

The State Government may, after due appropriation made by the Legislature of the State by law in this behalf, make in each financial year such contributions to the State Board as it may think necessary to enable that Board to perform its functions under this Act.

36. Fund of Central Board.—

(1) The Central Board shall have its own fund, and all sums which may, from time to time, be paid to it by the Central Government and all other receipts (by way of gifts, grants, donations, benefactions 1[fees] 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) The Central Board may expend such sums as it thinks fit for performing its functions under this Act, 2[and, where any law for the time being in force relating to the prevention, control or abatement of air pollution provides for the performance of any function under such law by the Central Board, also for performing its functions under such law] and such sums shall be treated as expenditure payable out of the fund of the Board.

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1. Ins. by Act 44 of 1978, sec. 16. 2. Ins. by Act 44 of 1978, sec. 16.

37. Fund of State Board.—

(1) The State Board shall have its own fund, and the sums which may, from time to time, be paid to it by the State Government and all other receipts (by way of gifts, grants, donations, benefactions 1[fees] 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) The State Board may expend such sums as it thinks fit for performing its functions under this Act, 1[and, where any law for the time being in force relating to the prevention, control or abatement of air pollution provides for the performance of any function under such law by the State Board, also for performing its functions under such law] and such sums shall be treated as expenditure payable out of the fund of that Board.

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1. Ins. by Act 44 of 1978, sec. 17.

37A. Borrowing powers of Board.—

1[37A. 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 the performance of all or any of its functions under this Act.]

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1. Ins. by Act 53 of 1988, sec. 19 (w.e.f. 29-9-1988).

38. 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, and copies thereof shall be forwarded to the Central Government or, as the case may be, the State Government.

39. Annual report.—

1[39. 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 from the last date of the previous financial year.

(2) Every State 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 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 last date of the previous financial year.]

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1. Subs. by Act 53 of 1988, sec. 20, for section 39 (w.e.f. 29-9-1988).

40. Accounts and audit.—

(1) Every Board shall 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 (1 of 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 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.

41. Failure to comply with directions under sub-section (2) or sub-section (3) of section 20, or orders issued under clause (c) of sub-section (1) of section 32 or directions issued under sub-section (2) of section 33 or section 33A.—

1[41. Failure to comply with directions under sub-section (2) or sub-section (3) of section 20, or orders issued under clause (c) of sub-section (1) of section 32 or directions issued under sub-section (2) of section 33 or section 33A.—(1) Whoever fails to comply with the direction given under sub-section (2) or sub-section (3) of section 20 within such time as may be specified in the direction shall, on conviction, 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 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) Whoever fails to comply with any order issued under clause (c) of sub-section (1) of section 32 or any direction issued by a court under sub-section (2) of section 33 or any direction issued under section 33A shall, in respect of each such failure and on conviction, 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 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.

(3) If the failure referred to in sub-section (2) continues beyond a period of one year after the date of conviction, the offender shall, on conviction, 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.]

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1. Subs. by Act 53 of 1988, sec. 21, for section 41 (w.e.f. 29-9-1988).

42. Penalty for certain acts.—

(1) 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 any officer or other employee of the Board any information required by him for the purpose of this Act, or

(e) fails to intimate the occurrence of any accident or other unforeseen act or event under section 31 to the Board and other authorities or agencies as required by that section, or

(f) in giving any information which he is required to give under this Act, knowingly or wilfully makes a statement which is false in any material particular, or

(g) for the purpose of obtaining any consent under section 25 or section 26, knowingly or wilfully 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 1[ten thousand rupees] or with both.

(2) Where for the grant of a consent in pursuance of the provisions of section 25 or section 26 the use of meter or gauge or other measure or monitoring device is required and such device is used for the purposes of those provisions, any person who knowingly or wilfully alters or interferes with that device so as to prevent it from monitoring or measuring correctly shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to 1[ten thousand rupees] or with both.

COMMENTS

Object

Whoever (i) 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 (ii) obstructs any person acting under the orders or directions of the Board from exercising his powers and performing his functions, or (iii) damages any work or property belonging to the Board, or (iv) fails to furnish any information required by the Board, or (v) fails to intimate the occurrence of any accident or other unforeseen act or event to the Board or (vi) knowingly or wilfully makes a statement which is false, shall be punishable with imprisonment upto three months, or with fine upto ten thousand rupees, or with both.

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1. Subs. by Act 53 of 1988, sec. 22, for “one thousand rupees” (w.e.f. 29-9-1988).

43. Penalty for contravention of provisions of section 24.—

Whoever contravenes the provisions of section 24 shall be punishable with imprisonment for a term which shall not be less than 1[one year and six months] but which may extend to six years and with fine.

COMMENTS

Scope

Contravention of the provisions of section 24 regarding prohibition on use of stream or well for disposal of polluting matter, etc., is punishable with imprisonment of not less than one year and six months but which may extend to six years and with fine.

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1. Subs. by Act 53 of 1988, sec. 23, for “six months” (w.e.f. 29-9-1988).

44. Penalty for contravention of section 25 or section 26.—

Whoever contravenes the provisions of section 25 or section 26 shall be punishable with imprisonment for a term which shall not be less than 1[one year and six months] but which may extend to six years and with fine.

COMMENTS

Object

Contravention of (i) section 25 regarding restrictions on new outlets and new discharges; or (ii) section 26 regarding existing discharge of sewage or trade effluents, is punishable with imprisonment of not less than one year and six months but which may extend to six years and with fine.

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1. Subs. by Act 53 of 1988, sec. 23, for “six months” (w.e.f. 29-9-1988).

45. Enhanced penalty after previous conviction.—

If any person who has been convicted of any offence under section 24 or section 25 or section 26 is again found guilty of an offence involving a contravention of the same provision, he shall, on the second and on every subsequent conviction, be punishable with imprisonment for a term which shall not be less than 1[two years] but which may extend to seven years and with fine:

Provided that for the purpose of this section no cognizance shall be taken of any conviction made more than two years before the commission of the offence which is being punished.

COMMENTS

Scope

If any person has been convicted for any offence under section 24 relating to prohibition on use of stream or well for disposal of polluting matter, etc., or under section 25 relating to restrictions on new outlets and new discharges or under section 26 relating to existing discharge of sewage or trade effluent and is again found guilty of an offence involving a contravention of the same provisions, he shall, or the second and on every subsequent conviction be punishable with imprisonment of not less than two year but which may extend to seven years and with fine.

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1. Subs. by Act 53 of 1988, sec. 24, for “one year” (w.e.f. 29-9-1988).

45A. Penalty for contravention of certain provisions of the Act.—

1[45A. Penalty for contravention of certain provisions of the Act.—Whoever contravenes any of the provisions of this Act or fails to comply with any order or direction given under this Act, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment which may extend to three months or with fine which may extend to ten thousand rupees or with both, and in the case of a continuing contravention or failure, with an additional fine which may extend to five thousand rupees for every day during which such contravention or failure continues after conviction for the first such contravention or failure.]

COMMENTS

Scope

Contravention of any of the provisions of this Act or failure to comply with any order or direction given under the Act, for which no penalty has been elsewhere provided in this Act, is punishable with imprisonment upto three months or with fine upto ten thousand rupees, or with both. Continuing contravention or failure is punishable with an additional fine upto five thousand rupees for day during which such contravention or failure continues after first conviction.

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1. Ins. by Act 53 of 1988, sec. 25 (w.e.f. 29-9-1988).

46. Publication of names of offenders.—

If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or subsequent conviction takes place to cause the offender’s name and place of residence, the offence and the penalty imposed to be published at the offender’s expense in such newspapers or in such other manner as the court may direct and the expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine.

47. 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 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 purposes 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.

COMMENTS

(i) Defence under sub-section (1)

The accused may prove that—

(a) the offence was committed without his knowledge, or

(b) he exercised all due diligence to prevent the commission of the offence.

Defence under sub-section (2)

The accused may prove that the offence has been committed without—

(a) his consent or connivance, or

(b) any neglect on his part.

(ii) The non-obstante clause with which a section (or sub-section) starts should be given its due meaning; Rashid Khan alias Rashid v. State of Rajasthan, (1994) 3 Crimes 313 (Raj).

48. Offences by Government Departments.—

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.

COMMENTS

Scope

Where any Department of the Government commits an offence under this Act, the Head of that Department shall be liable to be prosecuted and punished accordingly. However, in his defence, he may prove that (i) the offence was committed without his knowledge; or (ii) he exercised all due diligence to prevent the commission of the offence.

49. Cognizance of offences.—

1[(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[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.]

3[(3)] Notwithstanding anything contained in section 4[29 of the Code of Criminal Procedure, 1973 (2 of 1974)], it shall be lawful for any 4[Judicial Magistrate of the first class or for any Metropolitan Magistrate] to pass a sentence of imprisonment for a term exceeding two years or of fine exceeding two thousand rupees on any person convicted of an offence punishable under this Act.

COMMENTS

Magistrate not bound to take cognizance of offence

It is not necessary for the Magistrate to specifically state that he is taking cognizance of the offence; R. Rajendra Reddy v. Sujaya Feeds, (1994) 3 Crimes 692 (Kant).

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1. Subs. by Act 53 of 1988, sec. 26, for sub-section (1) (w.e.f. 29-9-1988).

2. Ins. by Act 53 of 1988, sec. 26 (w.e.f. 29-9-1988).

3. Sub-section (2) re-numbered as sub-section (3) by Act 53 of 1988, sec. 26 (w.e.f. 29-9-1988).

4. Subs. by Act 44 of 1978, sec. 19, for certain words.

50. Members, officers and servants of Boards to be public servants.—

All members, officers and servants of a Board when acting or purporting to act in pursuance of any of the provisions of this Act and the rules made thereunder shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

51. Central Water Laboratory.—

(1) The Central Government may, by notification in the Official Gazette,—

(a) establish a Central Water Laboratory; or

(b) specify any laboratory or institute as a Central Water Laboratory, to carry out the functions entrusted to the Central Water Laboratory under this Act.

(2) The Central Government may, after consultation with the Central Board, make rules prescribing—

(a) the functions of the Central Water Laboratory;

(b) the procedure for the submission to the said laboratory of samples of water or of sewage or trade effluent for analysis or tests, the form of the laboratory’s report thereunder 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.

52. State Water Laboratory.—

(1) The State Government may, by notification in the Official Gazette,—

(a) establish a State Water Laboratory; or

(b) specify any laboratory or institute as a State Water Laboratory, to carry out the functions entrusted to the State Water Laboratory under this Act.

(2) The State Government may, after consultation with the State Board, make rules prescribing—

(a) the functions of the State Water Laboratory;

(b) the procedure for the submission to the said laboratory of samples of water or of sewage or trade effluent 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.

53. Analysts.—

(1) The Central 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 water or of sewage or trade effluent sent for analysis to any laboratory established or specified under sub-section (1) of section 51.

(2) 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 water or of sewage or trade effluent sent for analysis to any laboratory established or specified under sub-section (1) of section 52.

(3) Without prejudice to the provisions of sub-section (3) of section 12, the Central Board or, as the case may be, the State Board may, by notification in the Official Gazette, and with the approval of the Central Government or the State Government, as the case may be, appoint such persons as it thinks fit and having the prescribed qualifications to be Board analysts for the purpose of analysis of samples of water or of sewage or trade effluent sent for analysis to any laboratory established or recognised under section 16, or, as the case may be, under section 17.

54. Reports of analysts.—

Any document purporting to be a report signed by a Government analyst or, as the case may be, a Board analyst may be used as evidence of the facts stated therein in any proceeding under this Act.

55. Local authorities to assist.—

All local authorities shall render such help and assistance and furnish such information to the Board as it may require for the discharge of its functions, and shall make available to the Board for inspection and examination such records, maps, plans and other documents as may be necessary for the discharge of its functions.

56. Compulsory acquisition of land for the State Board.—

Any land required by a State Board for the efficient performance of its functions under this Act shall be deemed to be needed for a public purpose and such land shall be acquired for the State Board under the provisions of the Land Acquisition Act, 1894 (1 of 1894), or under any other corresponding law for the time being in force.

57. Returns and reports.—

The Central Board shall furnish to the Central Government, and a State Board shall furnish to the State Government and to the Central Board such reports, returns, statistics, accounts and other information with respect to its fund or activities as that Government, or, as the case may be, the Central Board may, from time to time, require.

58. 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.

59. Protection of action taken in good faith.—

No suit or other legal proceedings shall lie against the Government or any officer of Government or any member or officer of a Board in respect of anything which is in good faith done or intended to be done in pursuance of this Act or the rules made thereunder.

60. Overriding effect.—

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act.

61. Power of Central Government to supersede the Central Board and Joint Boards.—

(1) If at any time the Central Government is of opinion—

(a) that the Central Board or any Joint Board 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 Central Government may, by notification in the Official Gazette, supersede the Central Board or such Joint Board, as the case may be, for such period, not exceeding one year, 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 Central Government shall give a reasonable opportunity to the Central Board or such Joint Board, as the case may be, to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the Central Board or such Joint Board, as the case may be.

(2) Upon the publication of a notification under sub-section (1) superseding the Central Board or any Joint Board,—

(a) all the members shall, as from the date of supersession 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 Central Board or such Joint Board shall, until the Central Board or the Joint Board, as the case may be, is reconstituted under sub-section (3) be exercised, performed or discharged by such person or persons as to Central Government may direct;

(c) all property owned or controlled by the Central Board or such Joint Board shall, until the Central Board or the Joint Board, as the case may be, is reconstituted under sub-section (3) vest in the Central Government.

(3) On the expiration of the period of supersession specified in the notification issued under sub-section (1), the Central Government may—

(a) extend the period of supersession for such further term, not exceeding six months, as it may consider necessary; or

(b) reconstitute the Central Board or the Joint Board, as the case may be, by 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 not be deemed disqualified for nomination or appointment:

Provided that the Central Government may at any time before the expiration of the period of supersession, whether originally specified under sub-section (1) or as extended under this sub-section, take action under clause (b) of this sub-section.

COMMENTS

Government action

The Government action must not be arbitrary or capricious but must be based on some principle which meets the test of reason and relevance; Ram Chandra Swami v. State of Rajasthan, (1994) 3 SLJ 45 (Raj FB).

62. Power of State Government to supersede State Board.—

(1) If at any time the State Government is of opinion—

(a) that the State Board 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 one year, 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, the provisions of sub-sections (2) and (3) of section 61 shall apply in relation to the supersession of the State Board as they apply in relation to the supersession of the Central Board or a Joint Board by the Central Government.

63. Power of Central Government to make rules.—

(1) The Central Government may, simultaneously with the constitution of the Central Board, make rules in respect of the matters specified in sub-section (2):

Provided that when the Central Board has been constituted, no such rule shall be made, varied, amended or repealed without consulting the Board.

(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 terms and conditions of service of the members (other than the chairman and member-secretary) of the Central Board under sub-section (8) of section 5;

(b) the intervals and the time and place at which meetings of the Central Board or of any committee thereof constituted under this Act, shall be held and the procedure to be followed at such meetings, including the quorum necessary for the transaction of business under section 8, and under sub-section (2) of section 9;

(c) the fees and allowances to be paid to such members of a committee of the Central Board as are not members of the Board under sub-section (3) of section 9;

1[(d) the manner in which and the purposes for which persons may be associated with the Central Board under sub-section (1) of section 10 and the fees and allowances payable to such persons;]

(e) the terms and conditions of service of the chairman and the member-secretary of the Central Board under sub-section (9) of section 5 and under sub-section (1) of section 12;

(f) conditions subject to which a person may be appointed as a consulting engineer to the Central Board under sub-section (4) of section 12;

(g) the powers and duties to be exercised and performed by the chairman and the member-secretary of the Central Board;

2[***]

(j) the form of the report of the Central Board analyst under sub-section (1) of section 22;

(k) the form of the report of the Government analyst under sub-section (3) of section 22;

3[(l) 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 38;

(ll) the form in which the annual report of the Central Board may be prepared under section 39;]

(m) the form in which the accounts of the Central Board may be maintained under section 40;

4[(mm) the manner in which notice of intention to make a complaint shall be given to the Central Board or officer authorised by it under section 49;]

(n) any other matter relating to the Central Board, including the powers and functions of that Board in relation to Union territories;

(o) any other matter which has to be, or may be, prescribed.

(3) 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, 5[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.

COMMENTS

Executive power of Government

Once statutory rules have been made, the executive power of the Government could be exercised only to fill in the gaps but not otherwise; Ram Dulari v. Union of India, (1994) 3 SLJ (CAT) 549.

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1. Subs. by Act 44 of 1978, sec. 20, for clause (d).

2. Clauses (h) and (i) omitted by Act 44 of 1978, sec. 20.

3. Subs. by Act 53 of 1988, sec. 27, for clause (l) (w.e.f. 29-9-1988).

4. Ins. by Act 53 of 1988, sec. 27 (w.e.f. 29-9-1988).

5. Subs. by Act 44 of 1978, sec 20, for certain words.

64. Power of State Government to make rules.—

(1) The State Government may, simultaneously with the constitution of the State Board, make rules to carry out the purposes of this Act in respect of matters not falling within the purview of section 63:

Provided that when the State Board has been constituted, no such rule shall be made, varied, amended or repealed without consulting that Board.

(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 terms and conditions of service of the members (other than the chairman and the member-secretary) of the State Board under sub-section (8) of section 5;

(b) the time and place of meetings of the State Board or of any committee of that Board constituted under this Act and the procedure to be followed at such meeting, including the quorum necessary for the transaction of business under section 8 and under sub-section (2) of section 9;

(c) the fees and allowances to be paid to such members of a committee of the State Board as are not members of the Board under sub-section (3) of section 9;

(d) the manner in which and the purposes for which persons may be associated with the State Board under sub-section (1) of section 10 1[and the fees and allowances payable to such persons];

(e) the terms and conditions of service of the chairman and the member-secretary of the State Board under sub-section (9) of section 5 and under sub-section (1) of section 12;

(f) the conditions subject to which a person may be appointed as a consulting engineer to the State Board under sub-section (4) of section 12;

(g) the powers and duties to be exercised and discharged by the chairman and the member-secretary of the State Board;

(h) the form of the notice referred to in section 21;

(i) the form of the report of the State Board analyst under sub-section (1) of section 22;

(j) the form of the report of the Government analyst under sub-section (3) of section 22;

(k) the form of application for the consent of the State Board under sub-section (2) of section 25, and the particulars it may contain;

(l) the manner in which inquiry under sub-section (3) of section 25 may be made in respect of an application for obtaining consent of the State Board and the matters to be taken into account in granting or refusing such consent;

(m) the form and manner in which appeals may be filed, 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 28;

2[(n) 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 38;

(nn) the form in which the annual report of the State Board may be prepared under section 39;]

(o) the form in which the accounts of the State Board may be maintained under sub-section (1) of section 40;

3[(oo) the manner in which notice of intention to make a complaint shall be given to the State Board or officer authorised by it under section 49;]

(p) any other matter which has to be, or may be, prescribed.

COMMENTS

Retrospective effect

No rule made under this section can have retrospective effect; Baidyanath Bandhopadhyay v. Union of India, (1994) 3 SLJ (CAT) 378.

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1. Ins. by Act 44 of 1978, sec. 21.

2. Subs. by Act 53 of 1988, sec. 28, for clause (n) (w.e.f. 29-9-1988).

3. Ins. by Act 53 of 1988, sec. 28 (w.e.f. 29-9-1988).

Bydeb

The Forest Conservation Act, 1980

1. SHORT TITLE, EXTENT AND COMMENCEMENT.

ACT NO. 69 OF 1980 [27th December, 1980.]

An Act to provide for the conservation of forests and for matters connected therewith or ancillary or incidental thereto. Be it enacted by Parliament in the Thirty-first Year of the Republic of India as follows:- 1. Short title, extent and commencement.(1) This Act may be called the Forest (Conservation) Act, 1980. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) It shall be deemed to have come into force on the 25th day of October, 1980.

(1) This Act may be called the Forest (Conservation) Act, 1980.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall be deemed to have come into force on the 25th day of October, 1980.

2. RESTRICTION ON THE PRESERVATION OF FORESTS OR USE OF FOREST LAND FOR NON-FOREST PURPOSE.

 Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing –

(i) That any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved.

(ii) That any forest land or any portion thereof may be used for any non-forest purpose.

 (iii) That any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;

 (iv) That any forest land or any portion thereof may be cleared of trees

which have grown naturally in that land or portion, for the purpose of using it for reforestation.

Explanation : For the purpose of this section “non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for –

 (a) The cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;

 (b) Any purpose other than reforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.

3. CONSTITUTION OF ADVISORY COMMITTEE.

The Central Government may constitute a Committee consisting of such number of persons as it may deem fit to advise that Government with regard to –

(i) The grant of approval under Section 2; and

(ii) Any other matter connected with the conservation of forest which may be referred to it by the Central Government.

3-A. PENALTY FOR CONTRAVENTION OF THE PROVISIONS OF THE ACT.

 Whoever contravenes or abets the contravention of any of the provisions of Section 2, shall be punishable with simple imprisonment for a period which may extend to fifteen days.

3-B. OFFENCES BY AUTHORITIES AND GOVERNMENT DEPARTMENTS.

(1) Where any offence under this Act has been committed –

(a) by any department of Government, the head of the department; or

(b) by any authority, every person, who, at the time the offence was committed, was directly in charge, of, and was responsible to, the authority for the conduct of the business of the authority as well as the authority, 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 the head of the department or any person referred to in clause (b), 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 punishable under the Act has been committed by a department of Government or any authority referred to in clause (b) of sub-section (1) 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, or in the case of any authority, any person other than the persons referred to in clause (b) of sub-section (1), such officer or persons shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

4. POWER TO MAKE RULES.

(1) The Central Government may, be notification in the Official Gazette, make rules for carrying out the provisions of this Act.

(2) Every rule made 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.

5. REPEAL AND SAVING.

(1) The Forest (Conservation) Ordinance, 1980 is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the provisions of the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.

Bydeb

The Environment (Protection) Act, 1986

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  1 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. Came into force on 19-11-1986, vide G.S.R. 1198(E), dated 12th November, 1986

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, plants, 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.

 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 there under; 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 purposes 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 the 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.

 COMMENTS

In exercise of the powers conferred by sub-sections (1) and (3) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986), the Central Government hereby constitutes an authority to be known as “Water Quality Assessment Authority” consisting of the following members with effect from, 20th June, 2001 namely:—

01Secretary, Ministry of Environment and Forests—Chairperson
2Additional Secretary and Project Director, National River Conservation Directorate, Ministry of Environment and Forests—Member
3Chairman, Central Water Commission—Member
4Additional Secretary, Ministry of Water Resources—Member
5Adviser, National River Conservation Directorate, Ministry of Environment and Forests—Member
6  Joint Secretary, Ministry of Agriculture and Cooperation—Member
7Joint Secretary, Ministry of Urban Affairs and Poverty Alleviation—Member
8Chairman, Central Ground Water Authority—Member
9Chairman, Central Pollution Control Board—Member
10Director, Indian Agricultural Research Institute, New Delhi—Member
11Director, National Environmental Engineering Research Institute,Nagpur—Member
12Commissioner (Water Management), Ministry of Water Resources—Member-Secretary.

 2. The Authority shall exercise the following powers and functions:—

 I. to exercise powers under section 5 of the said Act for issuing directions and for taking measures with respect to matters referred to in clauses (ix), (xi), (xii) and (xiii) of sub-section (2) of section 3 of the Act;

II. to direct the agencies (government/local bodies/non-governmental) for the following:

 (a) to standardise method(s) for water quality monitoring and to ensure quality of data generation for utilization thereof;

 (b) to take measures so as to ensure proper treatment of wastewater with a view to restoring the water quality of the river/water bodies to meet the designated-best-uses;

 (c) to take up research and development activities in the area of water quality management;

 (d) to promote recycling/re-use of treated sewage/trade effluent for irrigation in development of agriculture;

(e) to draw action plans for quality improvement in water bodies, and monitor and review/assess implementation of the schemes launched/to be launched to that effect;

 (f) to draw schemes(s) for imposition of restriction in water abstraction and discharge of treated sewage/trade effluent on land, rivers and other water bodies with a view to mitigating crisis of water quality;

(g) to maintain minimum discharge for sustenance of aequactic life forms in riverine system;

(h) to promote rain water harvesting;

(i) to utilize self-assimilation capacities at the critical river stretches to minimise cost of effluent treatment;

 (j) to provide information to pollution control authorities to facilitate allocation of waste load;

 (k) to review the status of quality of national water resources (both surface water and groundwater) and identify “Hot Spots” for taking necessary actions for improvement in water quality;

 (l) to interact with the authorities/committees constituted or to be constituted under the provisions of the said Act for matters relating to management of water resources;

 (m) to constitute/set-up State level Water Quality Review Committees (WQRC) to coordinate the work to be assigned to such committees; and

(n) to deal with any environmental issue concerning surface and groundwater quality which may be referred to it by the Central Government or the State Government relating to the respective areas, for maintenance and/or restoration of quality to sustain designated-best-uses.

 3. The Authority shall exercise the powers under section 19 of the said Act.

 4. The Authority may appoint domain experts for facilitating the work assigned to it.

 5. The Ministry of Water Resources shall create a cell to assist the Authority to carry out the assigned functions.

 6. The Authority shall furnish report about its activity at least once in three months to the Ministry of Environment and Forests.

 7. The tenure of the Authority shall be upto 31st March, 2007.

 [Vide S.O. 583(E), dated 29th May, 2001 and amended by S.O. 635(E), dated 26th May, 2004.]

 Approach of court

The court should approach that no activities which would ultimately lead to unscientific and unsustainable development and ecological destruction at all be allowed and the courts must scrupulously try to protect the ecology and environment; Goa Foundation, Goa v. Diksha Holdings Pvt. Ltd., AIR 2001 SC 184.

 CNG-buses

To protect the health of the present and future generation and protect and improve the environment, the non-CNG-buses were phased out and ordered for the use of CNG-buses; M.C. Mehta v. Union of India, AIR 2002 SC 1696.

 Environmental awareness

A public interest petition was filed seeking directions from the apex court to the Government for exhibition of slides in cinema halls containing information and messages on environment free of cost, spread of relative valuable information relating to environment in national and regional languages through television and Radio in regular and short-term programmes and for making environment as compulsory subject in schools and colleges. The Supreme Court accepted the prayers in principle and issued directions to that effect holding that keeping the citizens informed is an obligation of the Government; M.C. Mehta v. Union of India, AIR 1992 SC 382.

 Power of Central Government

The Central Government is empowered 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; M.C. Mehta v. Union of India, AIR 1988 SC 1037.

 Responsibility to repair damage

The responsibility for repairing the damage is of the offending industry. The task of determining the amount required for carrying out the remedial measures, its recovery/realisation and the task of undertaking the remedial measures is placed upon the Central Government; Indian Council for Enviro-Legal Action, etc. v. Union of India, AIR 1996 SC 1446.

Scope

The main purpose of the Act is to create an authority or authorities with adequate powers to control pollution and protect the environment; Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715.

Sustainable development

(i) To ensure sustainable development is one of the goals of Environmental Protection Act, 1986, and this is quiet necessary to guarantee ’right to life’ under Article 21. If the Act is not armed with the powers to ensure sustainable development, it will become a barren shell. In other words, sustainable development is one of the means to achieve the object and purpose of the Act as well as the protection of ’life’ under Article 21; N.D. Jayal v. Union of India, AIR 2004 SC 867.

(ii) It is necessary that green areas and the parks in all the towns and cities of Rajasthan are maintained to protect environment and ecology, but it is seen they are allowed to be encroached upon due to commercial and other pressures. They are converted from green areas to commercial areas and residential areas. Concrete jungles are swallowing green areas. That trend needs to be halted to protect and preserve ecology; Justice R.S. Verma v. State of Rajasthan, AIR 2004 Raj 175.

 (iii) The harmonisation of the two namely, the issue of ecology and developmental project cannot but be termed to be the order of the day and the need of the hour; Goa Foundation, Goa v. Diksha Holdings Pvt. Ltd., AIR 2001 SC 184.

 (iv) There is need for creating general awareness towards the hazardous effects of noise pollution. Similar awareness need to be created in Police and Civil administration as well. Not only the use of loudspeakers and playing of hi-fi amplifier systems has to be regulated, even the playing of high sound instruments which create noise beyond tolerable limit need to be regulated; Noise Pollution (in re:), AIR 2005 SC 3136..

 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 designations 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.

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.

COMMENTS

Prohibition to establish industry

Where total prohibition against establishment of industries in an area is in force, the State Government cannot grant exemption to a specified industry located within or attempting to locate itself within such area. Neither can the State direct the State Pollution Control Board to prescribe conditions for grant of No Objection Certificate; A.P. Pollution Control Board v. Prof. M.V. Nayudu, (2001) 2 SCC 62.

Void lease of land

(i) The grant of lease of land belonging to forest area to be used for setting up beneficiation plant which involve dust and water pollution and consequent destruction of adjoining forest and subsequently affecting the environment and ecology of the area and right to life, was declared void; Goa Foundation v. State of Goa, AIR 2001 Bom 318.

(ii) If the Central Government has issued certain directions and notified certain industries as hazardous and stone crushers have not been included then the Board would not be forbidden from exercising its power under provisions of Air Act or Water Act; Bihar State Pollution Control Board v. Hiranand Stone Works, AIR 2005 Pat 62.

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;

(b) the maximum allowable limits of concentration of various environmental pollutants (including noise) for different areas;

(c) the procedures and safeguards for the handling of hazardous substances;

(d) the prohibition and restrictions on the handling of hazardous substances in different areas;

 (e) the prohibition and restrictions on the location of industries and the carrying on of processes and operations in different areas;

(f) the procedures and safeguards for the prevention of accidents which may cause environmental pollution and for providing for remedial measures for such accidents.

 COMMENTS

Right to life

(i) The Karnataka High Court has directed the operation of industrial units in land earmarked as residential area in the Development plan to be stopped which were being established in gross violation of various statutory provisions thereby causing persistent pollution detrimental to health and held that where due to human negligence the quality of air or environment are threatened the court would not hesitate to use its innovative powers within its epistolary jurisdiction to enforce and safeguard the right to life to promote public interest. Since the right to life inherent in Article 21 of the Constitution of India contemplates qualitative life which is possible only in an environment of quality; V. Laksmipathy v. State of Karnataka, AIR 1992 Karn 57.

(ii) A limited power of exemption from the operation of Noise Rules by the Central Government is not unreasonable. The power to grant exemption is a reasonable restriction in public interest; Forum, Prevention of Environment & Sound Pollution v. Union of India, AIR 2006 SC 348.

7. PERSONS CARRYING ON INDUSTRY, OPERATION, ETC. NOT TO ALLOW EMISSION OR DISCHARGE OF ENVIRONMENTAL POLLUTANTS IN EXCESS OF THE STANDARDS.

No person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutant in excess of such standards as may be prescribed.

 COMMENTS

Pollution of Ganga water

Discharge or emittance or permission to discharge or emit of any environmental pollutant in excess of standards is strictly prohibited. The Supreme Court has issued directions to the concerned authorities to control and prevent the pollution of Ganga water at Kanpur, inter alia, being—(a) prevention from waste gathered at the dairies. (b) enlargement of sewers and construction of sewers where absent. (c) provision for public latrines to avoid use of open land. (d) High Courts should not ordinarily stay criminal proceedings in such matters. (e) Corpses or Half cremated bodies are not thrown in the river. (f) new industries to get licences only after making provision for treatment of effluents and immediate action against existing polluting industries. (g) Central Government to include environment as a subject in educational institutions. (h) people should be made aware of the environmental problems; M.C. Mehta v. Union of India, AIR 1988 SC 1115.

8. PERSONS HANDLING HAZARDOUS SUBSTANCES TO COMPLY WITH PROCEDURAL SAFEGUARDS.

 No person shall handle or cause to be handled any hazardous substance except in accordance with such procedure and after complying with such safeguards as may be prescribed.

 COMMENTS

Absolute liability

It has been held that there is an absolute liability on the part of those who are engaged in construction work, particularly of multi-storeyed structures, not to commit nuisance by letting out effluent from their drainage system; Ajay Constructions v. Kakateeya Nagar Cooperative Housing Society Ltd., AIR 1991 AP 294.

 Oleum gas leakage

Upon leakage of Oleum gas from Caustic Chlorine plant affecting several persons the Supreme Court allowed it to be restarted by the management subject to certain stringent conditions that were specified; M.C. Mehta v. Union of India, AIR 1987 SC 965.

Primary treatment plant

It has been held by the Supreme Court that a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effect on the public at large which is likely to ensure by the discharging of the trade effluents from the tannery to the river Ganga would be immense and it will outweigh any inconvenience that may be caused to the management and the labour employed by it on account of its closure; M.C. Mehta v. Union of India, AIR 1988 SC 1037.

 When need of judicial remedy may not arise

It has been held that to ensure the attainment of the constitutional goal of the protection and improvement of the natural wealth and environment and of the safeguarding of the forests, lakes, rivers and wildlife and to protect the people inhabiting the vulnerable areas from the hazardous consequences of the arbitrary exercise of granting mining leases and of indiscriminate operation of the mines on the strength of such leases without property, the court will be left with effectively by issuing appropriate writs, orders and directions including the direction as to the closure of the mines the operation whereof is proving to be hazardous and the total prohibition of the grant or renewal of mining leases till the Government evolves a long-term plan based on a scientific study with a view to regulating the exploitation of the minerals in the State without detriments to the environment, ecology, the natural wealth and resources and the local population. However, the need for judicial intervention may not arise even in those cases where the court’s jurisdiction is invoked if the administration takes preventive remedial and curative measures meanwhile; Kinkri Devi v. State of Himachal Pradesh, AIR 1988 HP 4.

9. FURNISHING OF INFORMATION TO AUTHORITIES AND AGENCIES IN CERTAIN CASES.

(1) Where the discharge of any environmental pollutant in excess of the prescribed standards occurs or is apprehended to occur due to any accident or other unforeseen act or event, the person responsible for such discharge and the person in charge of the place at which such discharge occurs, or is apprehended to occur shall be bound to prevent or mitigate the environmental pollution caused as a result of such discharge and shall also forthwith –

 (a) intimate the fact of such occurrence or apprehension of such occurrence; and

 (b) be bound, if called upon, to render all assistance, to such authorities or agencies as may be prescribed.

(2) On receipt of information with respect to the fact or apprehension of any occurrence of the nature referred to in sub-section (1), whether through intimation under that sub-section or otherwise, the authorities or agencies referred to in sub-section (1) shall, as early as practicable, cause such remedial measures to be taken as are necessary to prevent or mitigate the environmental pollution.

 (3) The expenses, if any, incurred by any authority or agency with respect to the remedial measures referred to in sub-section (2), together with interest (at such reasonable rate as the Government may, by order, fix) from the date when a demand for the expenses is made until it is paid may be recovered by such authority or agency from the person concerned as arrears of land revenue or of public demand.

10. POWER OF ENTRY AND INSPECTION.

(1) Subject to the provisions of this section, any person empowered by the Central Government 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 Central Government 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 there under 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 equipment, industrial plant, record, register, document or any other material object or for conducting a search of any building in which he has reason to believe that an offence under this Act or the rules made there under has been or is being or is about to be committed and for seizing any such 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 there under or that such seizure is necessary to prevent or mitigate environmental pollution.

 (2) Every person carrying on any industry, operation or process or handling any hazardous substance shall be bound to render all assistance to the person empowered by the Central Government 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 Central Government under sub-section (1) in the performance of his functions, he shall be guilty of an offence under this Act.

 (4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), 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.

 COMMENTS

Dispute for adjudication

In a writ petition filed in 1983, i.e., more than 3 years before the commencement of the Environment Protection Act, 1986 the Supreme Court has held that the Act does not purport to/or perhaps could not-take away the jurisdiction of the Supreme Court to deal with such case. Ordinarily the court would not entertain a dispute for the adjudication of which a special provision has been made by law but the rule is not attracted in the instant case. Besides it is a rule of practice and prudence and not one of jurisdiction; Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1988 SC 2187.

 Inspection of factory premises

It is open to the authority empowerd by the Central Government, to inspect the premises of the factory, call for documents from the parties or any other body or authority or from the State Government or Union Government and to examine witnesses, if needed. It also have power to obtain data or technical advice from any source; A.P. Pollution Control Board v. Prof. M.V. Nayudu, AIR 1999 SC 812.

11. POWER TO TAKE SAMPLE AND PROCEDURE TO BE FOLLOWED IN CONNECTION THEREWITH.

 (1) The Central Government or any officer empowered by it in this behalf, shall have power to take, for the purpose of analysis, samples of air, water, soil or other substance from any factory, premises or other place in such manner as may be prescribed.

 (2) The result of any analysis of a sample taken under sub-section (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), the person taking the sample under sub-section (1) shall –

(a) serve on the occupier or his agent or person in charge of the place, 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 or person, collect a sample 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 or person;

 (d) send without delay, the container or the containers to the laboratory established or recognised by the Central Government under section 12.

 (4) When a sample is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent or person, a notice under clause (a) of sub-section (3), then, –

(a) in a case where the occupier, his agent or person willfully absents himself, the person taking the sample shall collect the sample 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 or person present at the time of taking the sample refuses to sign the marked and sealed container or containers of the sample as required under clause (c) of sub-section (3), the marked and sealed container or containers shall be signed by the person taking the samples, and the container or containers shall be sent without delay by the person taking the sample for analysis to the laboratory established or recognised under section 12 and such person shall inform the Government Analyst appointed or recognised under section 13 in writing, about the willful absence of the occupier or his agent or person, or, as the case may be, his refusal to sign the container or containers.

12. ENVIRONMENTAL LABORATORIES.

(1) The Central Government may, by notification in the Official Gazette, –

 (a) establish one or more environmental laboratories;

(b) recognise one or more laboratories or institutes as environmental laboratories to carry out the functions entrusted to an environmental laboratory under this Act.

 (2) The Central Government may, by notification in the Official Gazette, make rules specifying –

 (a) the functions of the environmental laboratory;

(b) the procedure for the submission to the said laboratory of samples of air, water, soil or other substance for analysis or tests, the form of the laboratory report thereon the fees payable for such report;

 (c) such other matters as may be necessary or expedient to enable that laboratory to carry out its functions.

13. GOVERNMENT ANALYSTS.

The Central Government may, by notification in the Official Gazette, appoint or recognise such persons as it thinks fit and having the prescribed qualifications to be Government Analysts for the purpose of analysis of sample of air, water, soil or other substance sent for analysis to any environmental laboratory established or recognised under sub-section (1) of section 12.

14. REPORTS OF GOVERNMENT ANALYSTS.

Any document purporting to be a report signed by a Government analyst may be used as evidence of the facts stated therein in any proceeding under this Act.

15. PENALTY FOR CONTRAVENTION OF THE PROVISIONS OF THE ACT AND THE RULES, ORDERS AND DIRECTIONS.

(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued there under, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.

 (2) If the failure or contravention 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 may extend to seven years.

16. OFFENCES BY COMPANIES.

(1) Where any 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 provide 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 deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

 EXPLANATION : For the purposes of this section –

(a) “company” means any body corporate and includes a firm or other association of individuals;

 (b) “director”, in relation to a firm, means a partner in the firm.

 COMMENTS

Vicarious criminal liability

It is well settled principle of law that vicarious criminal liability cannot be attached unless all the conditions for fastening such liability are proved; Municipal Corporation of India v. Dev Raj, 1985 FAJ 156 Del DB.

17. OFFENCES BY GOVERNMENT DEPARTMENTS.

(1) Where an offence under this Act has been committed by the 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.

18. PROTECTION OF ACTION TAKEN IN GOOD FAITH.

 No suit, prosecution or other legal proceeding shall lie against the Government or any officer or other employee of the Government or any authority constituted under this Act or any member, officer or other employee of such authority in respect of anything which is done or intended to be done in good faith in pursuance of this Act or the rules made or orders or directions issued there under.

19. COGNIZANCE OF OFFENCES.

No Court shall take cognizance of any offence under this Act except on a complaint made by –

 (a) The Central Government or any authority or officer authorised in this behalf by that Government; 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 Central Government or the authority or officer authorised as aforesaid.

20. INFORMATION, REPORTS OR RETURNS..

 The Central Government may, in relation to its functions under this Act, from time to time, require any person, officer, State Government or other authority to furnish to it or any prescribed authority or officer any reports, returns, statistics, accounts and other information and such person, officer, State Government or other authority shall be bound to do so.

21. MEMBERS, OFFICERS AND EMPLOYEES OF THE AUTHORITY CONSTITUTED UNDER SECTION 3 TO BE PUBLIC SERVANTS.

All the members of the authority, constituted, if any, under section 3 and all officers and other employees of such authority when acting or purporting to act in pursuance of any provisions of this Act, or the rules made, or orders or directions issued there under, shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code.

22. BAR OF JURISDICTION.

No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of anything done, action taken or order or direction issued by the Central Government or any authority or officer in pursuance of any power conferred by or in relation to its or his functions under this Act.

23. POWER TO DELEGATE.

Without prejudice to the provisions of sub-section (3) of section 3, the Central Government may, by notification in the Official Gazette, delegate, subject to such conditions and limitations as may be specified in the notification, such of its powers and functions under this Act, [except the power to constitute an authority under sub-section (3) of section 3 and to make rules under section 25] as it may deem necessary or expedient, to any officer, State Government or other authority.

24. EFFECT OF OTHER LAWS.

(1) Subject to the provisions of sub-section (2), the provisions of this Act and the rules or orders made therein shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act.

 (2) Where any act or omission constitutes an offence punishable under this Act and also under any other Act then the offender found guilty of such offence shall be liable to be punished under the other Act and not under this Act.

25. POWER TO MAKE RULES.

(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

 (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 in excess of which environmental pollutants shall not be discharged or emitted under section 7;

 (b) the procedure in accordance with and the safeguards in compliance with which hazardous substances shall be handled or caused to be handled under section 8;

 (c) the authorities or agencies to which intimation of the fact of occurrence or apprehension of occurrence of the discharge of any environmental pollutant in excess of the prescribed standards shall be given and to whom all assistance shall be bound to be rendered under sub-section (1) of section 9;

 (d) the manner in which samples of air, water, soil or other substance for the purpose of analysis shall be taken under sub-section (1) of section 11;

 (e) the form in which notice of intention to have a sample analysed shall be served under clause (a) of sub-section (3) of section 11;

 (f) the functions of the environmental laboratories, the procedure for the submission to such laboratories of samples of air, water, soil and other substances for analysis or test; the form of laboratory report; the fees payable for such report and other matters to enable such laboratories to carry out their functions under sub-section (2) of section 12;

 (g) the qualifications of Government Analyst, appointed or recognised for the purpose of analysis of samples of air, water, soil or other substances under section 13;

 (h) the manner in which notice of the offence and of the intention to make a complaint to the Central Government shall be given under clause (b) of section 19;

(i) the authority or officer to whom any reports, returns, statistics, accounts and other information shall be furnished under section 20;

 (j) any other matter which is required to be, or may be, prescribed.

26. RULES MADE UNDER THIS ACT TO BE LAID BEFORE PARLIAMENT.

 Every rule made 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 House 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.

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The Air Corporations (Transfer of Undertakings and Repeal) Act, 1994

1. Short title, extent and commencement.—

(1) This Act may be called the Air Corporations (Transfer of Undertakings and Repeal) Act, 1994.

(2) It shall be deemed to have come into force on the 29th day of January, 1994.

2. Definitions.—

In this Act, unless the context otherwise requires,—

(a) “appointed day” means such date as the Central Government may, by notification in the Official Gazette, appoint under section 3;

 (b) “company” means “Indian Airlines Limited” or “Air India Limited” formed and registered under the Companies Act, 1956 (1 of 1956);

(c) “corporations” means “Indian Airlines” and “Air India” established under section 3 of the Air Corporations Act, 1953 (27 of 1953) and “corporation” means either of the corporations.

3. Undertakings of corporations to vest in companies.—

On such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be transferred to, and vest in,—

(a) Indian Airlines Limited, the undertaking of Indian Airlines; and

(b) Air India Limited, the undertaking of Air India.

4. General effect of vesting of undertakings in the companies.—

(1) The undertaking of a corporation which is transferred to, and which vests in, a company under section 3 shall be deemed to include all assets, rights, powers, authorities and privileges and all properties, movable and immovable, real or personal, corporeal or incorporeal, in possession or reservation, present or contingent, of whatever nature and wheresoever-situate, including lands, words, workshops, aircraft cash balances, capital reserves, reserve funds, investments, tenancies, leases and book debts and all other rights and interests arising out of such property as were immediately before the appointed day in the ownership, possession or power of that corporation in relation to its undertaking, whether within or outside India, all books of account and documents relating thereto and shall also be deemed to include all borrowings, liabilities and obligations of whatever kind then subsisting of that corporation in relation to its undertaking.

(2) All contracts and working arrangements subsisting immediately before the appointed day and affecting a corporation shall, in so far as they relate to the undertaking of that corporation cease to have effect or to be enforceable against that corporation and shall be of as full force and effect against or in favour of the company in which the undertaking has vested by virtue of this Act and enforceable as fully and effectually as if, instead of the corporation, the company had been named therein or had been a party thereto.

(3) Any proceeding or cause of action pending or existing immediately before the appointed day by or against a corporation in relation to its undertaking may, as from that day, be continued and enforced by or against the company in which it has vested by virtue of this Act, as it might have been enforced by or against that corporation if this Act had not been passed, and shall cease to be enforceable by or against that corporation.

5. Licences etc., to be deemed to have been granted to companies.—

With effect from the appointed day, all licences, permits, quotas and exemptions granted to a corporation in connection with the affairs and business of that corporation under any law for the time being in force, shall be deemed to have been granted to the company in which the undertaking of that corporation has vested.

 Comments

All licences, permits, quotas and exemptions which were granted to corporations shall be deemed to have been granted to the company in which such corporation has vested.

6. Tax exemption or benefit to continue to have effect.—

Where any exemption from, or any assessment with respect to any tax has been granted or made or any benefit by way of set off or carry forward, as the case may be, of any unabsorbed depreciation or investment allowance or other allowance or loss has been extended or is available to a corporation under the Income-tax Act, 1961 (43 of 1961), such exemption, assessment or benefit shall continue to have effect in relation, to the company in which the undertaking of that corporation has vested.

(2) Where any payment made by a corporation is exempt from deduction of the tax at source under any provision of the Income-tax Act, 1961 (43 of 1961), the exemption from tax will continue to be available as if the provisions of the said Act made applicable to the corporation were operative in relation to the company in which the undertaking of that corporation has been vested.

(3) The transfer and vesting of the undertaking or any part thereof in terms of section 3 shall not be construed as a transfer within the meaning of the Income-tax Act, 1961 (43 of 1961), for the purposes of capital gains.

7. Guarantee to be operative.—

Any guarantee given for or in favour of a corporation with respect to any loan or lease finance shall continue to be operative in relation to the company in which the undertaking of that corporation has vested by virtue of this Act.

Comments

Any guarantee given for any loan or lease in favour of corporation shall be operative for the company as well.

8. Provisions in respect of officers and other employees of corporations.—

(1) Every officer or other employee of a corporation (except a Director of the Board, Chairman, Managing Director or any other person entitled to manage the whole or a substantial part of the business and affairs of the corporation) serving in its employment immediately before the appointed day shall, in so far as such officer or other employee is employed in connection with the undertaking which has vested in a company by virtue of this Act, become, as from the appointed day, an officer or other employee, as the case may be, of the company in which the undertaking has vested and shall hold his office or service therein by the same tenure, at the same remuneration, upon the same terms and conditions, with the same obligations and with the same rights and privileges as to leave, passage, insurance, superannuation scheme, provident fund, other funds retirement, pension, gratuity and other benefits as he would have held under that corporation if its undertaking had not vested in the company and shall continue to do so as an officer or other employee, as the case may be, of the company or until the expiry of a period of six months from the appointed day if such officer or other employee opts not to be the officer or other employee of the company, within such period.

(2) Where an officer or other employee of a corporation opts under sub-section (1) not to be in the employment or service of the company in which the undertaking of that corporation has vested, such officer or other employee shall be deemed to have resigned.

(3) Notwithstanding anything contained in the Industrial Disputes Act, 1947 (14 of 1947) or in any other law for the time being in force, the transfer of the services of any officer or other employee of a corporation to a company shall not entitle such officer or other employee to any compensation under this Act or under any other law for the time being in force and no such claim shall be entertained by any Court, tribunal or other authority;

(4) The officers and other employees who have retired before the appointed day from the service of a corporation and are entitled to any benefits, rights or privileges shall be entitled to receive the same benefits, rights or privileges from the company in which the undertaking of that corporation has vested.

(5) The trusts of the Provident Fund or Pilots Group Insurance and Superannuation Scheme of the corporation and any other bodies created for the welfare of officers or employees would continue to discharge their functions in the company as was being done hitherto in the corporation. Tax exemption granted to Provident Fund or Pilots Group Insurance and Superannuation Scheme would continue to be applied to the company.

(6) Notwithstanding anything contained in this Act or in the Companies Act, 1956 (1 of 1956), or in any other law for the time being in force or in the regulations of a corporation, no Director of the Board, Chairman, Managing Director or any other person entitled to manage the whole or a substantial part of the business and affairs of that corporation shall be entitled to any compensation against that corporation or against the company, as the case may be, for the loss of office or for the premature, termination of any contract of management entered into by him with that corporation.

9. Power of Central Government to give directions.—

The Central Government may give to a company directions as to the exercise and performance by that company of its functions, and that company shall be bound to give effect to any such directions.

Comments

The Central Government is empowered to give directions to the companies and companies are bound to give effects to such directions.

10. Power to remove difficulties.—

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, not inconsistent with the provisions of this Act, remove the difficulty:

Provided that no such order shall be made after the expiry of a period of two years from the coming into force of this Act.

(2) Every order made under sub-section (1) shall be laid before each House of Parliament.

11. Repeal of Act 27 of 1953 and cesser of corporations.—

On the appointed day, the Air Corporations Act, 1953 shall stand repealed.

(2) The corporations shall, with the repeal of the Air Corporations Act, 1953, cease to exist.

12. Repeal and saving.—

(1) The Air Corporations (Transfer of Undertakings and Repeal) Ordinance, 1994 (Ord. 4 of 1994) is hereby repealed.

 (2) Notwithstanding such repeal of the Air Corporations (Transfer of Undertakings and Repeal) Ordinance, 1994 (Ord. 4 of 1994), anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.

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The Delhi Prohibition of Smoking and Non-Smokers Health Protection Act, 1996

1. Short title, extend and commencement.-

(25th September, 1996)

An Act to provide for prohibiting of smoking in places of public work or use and in public service vehicles in the National Capital Territory of Delhi and to make provision for other matters connected therewith.

BE it enacted by the Legislative Assembly of the National Capital Territory of Delhi in the Forty-Seventh Year of the Republic of India as follows:-

(1) This Act may be called the Delhi Prohibition of Smoking and Non-smokers Health Protection Act, 1996.

(2) It extends to the whole of the National Capital Territory of Delhi

(3) It shall come into force on such date as the Government may by Notification in the Official Gazette appoint:

Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

2. Definition.-

In this Act, unless the context otherwise require:-

(a) “Advertisement” means and includes any notice, circular, wall paper, pamphlet, display on hoarding, or any visible representation made by means of any other means of any light, sound, smoke, gas or any other mean which has the effect of promoting smoking and the expression ‘advertise’ shall be construed accordingly.

(b) ‘Authrorised officer” mean a person authorised under section 4,

(c) “Delhi” means the National Capital Territory of Delhi,

(d) “Government” means the Government of the National Capital Territory of Delhi

(e) “Legislative Assembly” mea, the Legislative Assembly for Delhi

(f) “Place of public work or use” means a place declared as such under section 3 and includes auditorial, hospital building, health institutions, amusement centres, restaurants, public offices, court buildings, educational Institutions, libraries and the like which are visited by general public but does not include any open place ,

(g) “Official Gazette” means the Delhi Gazette:

(h) “Public service vehicle” means a vehicle as defined under clause (35 ) of section 2 or the Motor Vehicles Act, 1988 (59 of 1988),

 (i) “Rule” means the rule made under this Act,

(j) “Smoking” means smoking of tobacco in any form whether in the form of cigarette, cigar, beedis or otherwise with the aid of a pipe, wrapper or any other instruments.

3. Declaration no-smoking places of public work or use.-

As soon as may be after the commencement of this Act and thereafter from time to time, the Government may, by notification in the Official Gazette, declare any place of public work or use in the Delhi to be no-smoking place for the purpose of this Act.

4. Power of Government to authorise officers to Act under this Act.-

(1) The Government may, by notification in the Official Gazette, authorise one or more persons who shall be competent to act under this Act.

(2) Every person authorised under sub section (1) shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).

5. Prohibition of smoking in places of public work or use.-

No person shall smoke in any place of public work or use.

6. Prohibition of smoking in public service vehicles:-

Without prejudice to the provisions of the Motor Vehicles Act, 1988 (59 of 1988) no person shall smoke in a public service vehicle.

7. Prohibition on advertisement of cigarettes etc.-

Notwithstanding anything contained in any other law for the time being force, no person shall advertise in any place and any public service vehicle which may promote smoking, or the sale of cigarettes and beedis etc.

8. Prohibition of sale of cigarettes, etc, to minors.-

No person shall sell cigarettes, beedis or any other such smoking substance to any who is below the age of eighteen years.

9. Prohibition of storages, sale and distribution of cigarettes, etc. in the vicinity of educational institutions-

No person shall himself or by any person on this behalf, store, sell or distribute cigarettes or beedies or any other such smoking substance within an area of one hundred metre around by college, school or educational institution.

10. Display and Exhibition of Board:-

The owner or manager or in charge of affairs of every place of public work or use shall display and exhibit a board at a conspicuous place or places in and outside the premises visited or used by general public prominently starting that the place is a “No Smoking Zone” and that “Smoking is an Offence”.

11. Penalties.- Any person, who contravenes the provisions of:-

Section 5,6, or 10 shall be punishable with fine which may extend to one hundred rupees and in case of second or subsequent offence, shall be punishable with a minimum fine of two hundred rupees, but which may extend to five hundred rupees.

 Section 7, 8 or 9 shall be punishable with fine which may extend to five hundred rupees and in case of second or subsequent offence, shall be punishable with imprisonment which may extend to three months, or with a minimum fine of five hundred rupees, but which may extend to one thousand rupees, or with both.

12. Ejection of violators of this Act from the place of public work or use.-

Any authorise offence or any police officer, not below the rank of sub inspector, may eject any person from the place of public work or use who contravenes the provisions of this Act.

13. Court competent to try offences under this Act and take cognizance of offence:-

(1) No court other than the court a Metropolitan Magistrate shall take cognizance of, any try an offence under this Act.

14. Certain offences to be cognizable and bailable.-

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) offences under section 7, 8 and 9 shall be cognizable and bailable.

 15. Offences under the Act to be tried summarily.-

All offences under this Act shall be tried summarily in the manner provided for summary trial under the Code of Criminal Procedure, 1973 (2 of 1974).

16. Power to delegate.-

The Government may, by notification in the official Gazette, direct that any power exercisable by it, under this Act, may also be exercised by such officer as may be mentioned therein, subject to such conditions, if any as may be specified therein.

17. Composition of offences.-

The Government or any person authorised by it by general or special order in this behalf, may either before or after the institution of the proceedings compound any offences made punishable by or under this Act.

18. Power to make rules.-

(1) The Government may make rule to provide for or regulate any matter in respect of which this Act makes no provision or makes insufficient provisions and provision is, in its opinion, necessary.

(2) Any rule made by the Government shall be subject to previous publication thereof in the Official Gazette.

 (3) Every rule made under this Act shall be laid as soon as may be after it is made before the Legislative Assembly and if the House agrees in making any modification in the rule or the House agrees that the rule should not be made, the rule shall thereafter have effect only in such modified form or be 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.

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Air (Prevention and Control of Pollution) Act, 1981

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 date 1 as the Central Government may, by notification in the Official Gazette, appoint.

——————————————————–

1. Came into force on 16-5-1981 vide G.S.R. 351(E), dated 15th May, 1981, published in the Gazette of India, Extra., Pt. II, Sec. 3(i), p. 944.

2. DEFINITIONS.

In this Act, unless the context otherwise requires, –

(a) “air pollution” means any solid, liquid or gaseous substance 1(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 pollutant;

(c) “approved appliance” means any equipment or gadget used for the burning of any combustible material or for generating or consuming any fume, gas or particulate matter and approved by the State Board for the purposes 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 a State Board;

(g) “Central Board” means the 2Central Pollution Control Board constituted under Section 3 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 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;

3(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 (6 of 1974), is in force and the State Government has constituted for that State State Pollution Control Board 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.

COMMENTS

Air Pollution

The Supreme Court in a case of leakage of Oleum gas from the Caustic Chlorine plant affecting several persons due to air pollution directed the management to resume production on compli­ance of specific stringent conditions. It is pertinent to mention that this was a public interest litigation and the Supreme Court held that but for this case there would have been no improvement in the design, structure and quality of the machinery and equip­ment in the Caustic Chlorine plant nor would any proper and ade­quate safety devices and instruments have been installed nor would there have been any pressure on the management to observe safety standards and procedures. In token appreciation of the work done by the petitioner the Supreme Court directed the re­spondent to pay

Rs. 10,000 by way of costs to the petitioner; M.C. Mehta v. Union of India, AIR 1987 SC 965.

Noise Pollution

The disturbance produced in our environment by the undesirable sound of various kind is ‘Noise Pollution’; In re: Noise Pollution –

Implementation of Laws for Restricting use of Loudspeakers and High Volume Producing Sound Systems, AIR 2005 SC 3136.

———–

1. Ins. by Act 47 of 1987, sec. 2 (w.e.f. 1-4-1988).

2. Subs. by Act 47 of 1987, sec. 2, for “Central Board for the Prevention and Control of Water Pollution”.

3. Subs. by Act 47 of 1987, sec. 2, for clause (m) (w.e.f. 1-4-1988).

4. Subs. by Act 47 of 1987, sec. 2, for “State Board for the Prevention and Control of Water Pollution”.

3. CENTRAL POLLUTION CONTROL BOARD.

1The 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.

——————————————————–

1. Subs. by Act 47 of 1987, sec. 3, for sections 3 and 4 (w.e.f. 1-4-1988). Sections 3 & 4, before substitution, stood as under:

“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 Pollution) Act, 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 Board for the Prevention and Control of Air Pollution under this Act.

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, 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.”

4. STATE POLLUTION CONTROL BOARD 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) Act, 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.

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 1State Pollution Control Board 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 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;

(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-official, not exceeding three, as the State Government may think fit, to be nominated by the State Government to represent the interests 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;

2(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 Government :

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.

1. Subs. by Act 47 of 1987, sec. 4, for “State Board for the Prevention and Control of Water Pollution” (Effective date to be notified).

2. Subs. by Act 47 of 1987, sec. 4, for clause (f) (w.e.f. 1-4-1988).

6. CENTRAL BOARD TO EXERCISE THE POWERS AND PERFORM THE 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 term 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 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 clause (c) of sub-section (2) of Section 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 re-nomination. 1[***]

(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.

 ———————————

1. The words “but not for more than two terms” omitted by Act 47 of 1987, sec. 5 (w.e.f. 1-4-1988).

8. DISQUALIFICATIONS.

(1) No person shall be a member of a State Board constituted under this Act, who –

(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; or

(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; or

 (e) 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 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 interests 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 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.

 (2) Copies of the 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 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 right to take part in the discussions of the Board relevant to that purpose, but shall not have a light to vote at a meeting 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.

14. MEMBER-SECRETARY AND OFFICERS AND OTHERS 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.

1(2) The member-secretary of a State Board, whether constituted under this Act or not, shall exercise such powers and performs 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 scales of pay of the officers (other than 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.

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1. Subs. by Act 47 of 1987, sec. 6, for sub-section (2) (w.e.f. 1-4-1988).

15. DELEGATION OF POWERS.

A State Board may, by general or special order, delegate to the 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.

Comments

The delegating authority, by the mere act of delegation, does not completely denude it

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, 1974 (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 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;

 1(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 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 is 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.

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1. Ins. by Act 47 of 1987, sec. 7 (w.e.f. 1-4-1988).

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 (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 qualify 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 its 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.

COMMENTS

The Supreme Court ordered the closure of limestone quarries which were causing imbalance to ecology and hazard to public health and environment. However, in order to mitigate the hardship caused by such closure to the lessee, Government of India and State of U.P. were directed to give priority and send intimation when­ever any other area was allotted for grant of limestone or dolomite quarrying to the displaced lessees; Rural Litigation and Entitlement Kendra Dehradun v. State of U.P., AIR 1985 SC 651.

18. POWER TO GIVE DIRECTIONS. .

1In 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.

2(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 may, 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 expresses, 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 direction 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.

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1. Section 18 re-numbered as sub-section (1) thereof by Act 47 of 1987, sec. 8 (w.e.f. 1-4-1988).

2.Ins. by Act 47 of 1987, sec. 8 (w.e.f. 1-4-1988).

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 State 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.

 COMMENTS

Power of authority, when not to cease

The power which vests in an authority would not cease to exist simply for the reason that the rules have not been framed or the manner of exercise of the power has not been prescribed; Orissa State Prevention and Control of Pollution Board v. Orient Paper Mills, AIR 2003 SC 1966.

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 under clause (g) of sub-section (1) of Section 17 are compiled 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 (4 of 1939), and such authority shall, notwithstanding anything contained in that Act or the rules made there under be found to comply with such instructions.

COMMENTS

 The Motor Vehicles Act, 1988, inter alia, provides for prevention and control of air pollution from automobiles which constitute a major source of pollution everywhere, especially in the congested metropolis. Sub-section (1) of section 110 of the said Act inter alia lays down that the Central Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all or any of the following matters:—

 (i) the emission of smoke, visible vapour, sparks, ashes, grit or oil;
(ii) the reduction of noise emitted by or caused by vehicles;
(iii) standards for emission of air pollutants.

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*. See now the Motor Vehicles Act, 1988 (59 of 1988).

21. RESTRICTIONS ON USE OF CERTAIN INDUSTRIAL PLANTS.

1(1) 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 2such 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, 3and 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 such consent :

4Provided 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 proviso, 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 approved 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;

(v) Such other conditions as the State Board may specify in this behalf; and

(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 5in 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 case may be, erected or re-erected 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.

COMMENTS

Where a notification was issued under section 19(1) of the Act by the Central Govern­ment in consultation with the Central Board placing the Union territory of Delhi within the control area of air pollution, any plant if established has to take permission from the Central Board. In the present case the Sriram Plants of Delhi fell under the schedule of the industries specified in the Act, and had to obtain consent order under section 21 thereof. Accordingly if the Cen­tral Board at any stage found that the conditions in the consent order relating to power plant were not complied with and the particular matter emitted by the stacks of the boilers was more than 150 mg/Nm3 it could take whatever action as was warranted by law; M.C. Mehta v. Union of India, (1986) 2 SCC 176.

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1. Subs. by Act 47 of 1987, sec. 9, for sub-section (1) (w.e.f. 1-4-1988).

2. The words “for the purpose of any industry specified in the schedule” omitted by Act 47 of 1987, sec. 9 (w.e.f. 1-4-1988).

3. Subs. by Act 47 of 1987, sec. 9, for certain words (w.e.f. 1-4-1988).

4. Ins. by Act 47 of 1987, sec. 9 (w.e.f. 1-4-1988).

 5. The words “for the purpose of any industry specified in the schedule” omitted by Act 47 of 1987, sec. 9 (w.e.f. 1-4-1988).

22. PERSONS CARRYING ON INDUSTRY, ETC., NOT TO ALLOW EMISSION OF AIR POLLUTANTS IN EXCESS OF THE STANDARDS LAID DOWN BY STATE BOARD.

 No person 1[***]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 (9) of sub-section (1) of Section 17.

 COMMENTS

 When polluting plant to be removed

It has been held that manufacturing of medicines by installing a boiler in a residential area which causes emission of smoke is detrimental to the physical comfort and health of the public at large. In such a case removal of factory ordered by the SDM was valid; Krishna Gopal v. State of Uttar Pradesh, 1986 Cr LR 11 (MP).

Imposition of stringent conditions

The Supreme Court has held that since chlorine gas is danger­ous to the life and health of the general public after any leak­age from a storage tank, cylinder or any other point during its production, the health and welfare of the workers and public at large living in surrounding areas may be put to risk. Accordingly the Foods & Fertilizer Industries were imposed stringent condi­tions to carry on such production so that such an eventuality may be prevented; M.C. Mehta v. Union of India , AIR 1987 SC 965.

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1.The words “carrying on any industry specified in the Schedule or” omitted by Act 47 of 1987, sec. 10 (w.e.f. 1-4-1988).

22A. POWER OF BOARD TO MAKE APPLICATION TO COURT FOR RESTRAINING PERSONS FROM CAUSING AIR POLLUTION.

1 POWER OF BOARD TO MAKE APPLICATION TO COURT FOR RESTRAINING PERSONS 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.

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1. Ins. by Act 47 of 1987, sec. 11 (w.e.f. 1-4-1988).

23. FURNISHING OF INFORMATION TO STATE BOARD AND OTHER AGENCIES IN CERTAIN CASES.

(1) Where in any area the emission of any 1air 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 such 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 measures 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 (at 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 the Board, authority or agency from the person, concerned, as arrears of land revenue, or of public demand.

COMMENTS

 Scope

The measures envisaged in the Act are preventive in the case of industries yet to be estab­lished and remedial in case of industries already in existence. The duty of the Board is to mitigate the emission of air pollu­tants and action may be taken on violation thereof but the dras­tic measure of closing down industry is neither warranted nor has the legal sanctity as paralysing the industry would render a number of persons unemployed and the consequences may be more hazardous than air pollution; Chaitanya Pulverising Industry v. Karnataka State Pollution Control Board, AIR 1987 Kant 82.

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1. The words “air pollution control” omitted by Act 47 of 1987, sec. 12 (w.e.f. 1-4-1988).

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 there under 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 there under has been 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 there under.

(2) Every person 1f1operating 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 (2 of 1974), 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.

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1. The words “carrying on any industry specified in the Schedule and every person” omitted by Act 47 of 1987, sec. 13 (w.e.f. 1-4-1988).

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 that 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 on 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 sub-section (1) shall 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 analyzed;

 (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 singed both by the person taking the sample and the occupier or his agent;

(d) Send, without delay, the container or containers 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 sealed container or containers of the sample of emission as required under clause (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 Section 28 and such person shall inform the Government analyst appointed under sub-section (1) of Section 29, in writing, about the willful absence of the occupier or his agent, or, as the case may be, his refusal to sign 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 (d) 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 analyst 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 willfully absents himself or refuses to sign the marked and sealed container or containers of sample of emission under sub-section (4) of other 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. ANALYSTS.

(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 set for analysis to any laboratory established or recognised under Section 17.

30. REPORT OF ANALYSTS.

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 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.

 (2) 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.

 (3) 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.

(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.

31A. POWER TO GIVE DIRECTIONS.

1POWER 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 –

(a) The closure, prohibition or regulation of any industry, operation or process; or

(b) The stoppage or regulation of supply of electricity, water or any other service.

COMMENTS

The Powers under section 31A are in addition to section 17. Section 17 of the Act is not exhaustive, therefore the general powers to issue directions were also conferred on the Board; Bihar State Pollution Control Board v. Hiranand Stone Works, AIR 2005 Pat 62.

 ———————————————————–

1.Ins. by Act 47 of 1987, sec. 14 (w.e.f. 1-4-1988).

32. CONTRIBUTIONS 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 Boards to perform their functions under this Act :

Provided that nothing in this section shall apply to any 1State Pollution Control Board constituted under Section 4 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), which is empowered by that Act to expend money from its fund there under also for performing its functions, under any law for the time being in force relating to the prevention, control or abatement of air pollution.

——————————————

1. Subs. by Act 47 of 1987, sec. 15, for “State Board for the Prevention and Control of Water Pollution” (Effective date to be notified).

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 there from.

(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 1[ State Pollution Control Board ] constituted under Section 4 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), which is empowered by that Act to expend money from its fund there under also for performing its functions, under any law for the time being in force relating to the prevention, control or abatement of air pollution.

———————

1. Subs. by Act 47 of 1987, sec. 15, for “State Board for the Prevention and Control of Water Pollution”.

33A. BORROWING POWERS OF BOARD.

1BORROWING 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.

——————————————————-

1. Ins. by Act 47 of 1987, sec. 16 (w.e.f. 1-4-1988).

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, 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.

 35. ANNUAL REPORT.

1(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 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 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 last date of the previous financial year.

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1.Subs. by Act 47 of 1987, sec. 17, for section 35 (w.e.f. 1-4-1988).

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 (1 of 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.

37. FAILURE TO COMPLY WITH THE PROVISIONS OF SECTION 21 OR SECTION 22 OR WITH THE DIRECTIONS ISSUED UNDER SECTION 31-A.

1 FAILURE TO COMPLY WITH THE PROVISIONS OF SECTION 21 OR SECTION 22 OR WITH THE DIRECTIONS ISSUED UNDER SECTION 31-A.

 (1) Whoever fails to comply with the provisions of Section 21 or Section 22 or directions issued under Section 31-A, shall, in respect of each 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 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.

 ————————————————

1. Subs. by Act 47 of 1987, sec. 18, for section 37 (w.e.f. 1-4-1988).

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 1ten thousand rupees or with both.

————-

1. Subs. by Act 47 of 1987, sec. 19, for “five hundred rupees” (w.e.f. 1-4-1988).

39. PENALTY FOR CONTRAVENTION OF CERTAIN PROVISIONS OF THE ACT

1PENALTY FOR CONTRAVENTION OF CERTAIN PROVISIONS OF THE ACT

Whoever contravenes any of the provisions of this Act or any order or direction issued there under, 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.

 —————————————————-

1.Subs. by Act 47 of 1987, sec. 20, for section 39 (w.e.f. 1-4-1988).

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 be deemed to be guilty of that offence and shall be liable to be proceeded against and published accordingly.

Explanation : For the purposes 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 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 this Act or the rules made there under.

 43. COGNIZANCE OF OFFENCES.

1COGNIZANCE 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) Were 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.

———————

1. Subs. by Act 47 of 1987, sec. 21, for section 43 (w.e.f. 1-4-1988).

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 there under shall be deemed to be public servants 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 to other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

COMMENTS

In respect of any matter which an Appellate Authority is empowered, Civil Court has no jurisdiction to entertain any suit and no injunction shall be granted in respect of any action taken or to be taken by the Authority concerned; A.R. Ponnusamy v. Thoppalam, AIR 2004 Mad 147.

47. POWER OF STATE 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 suppression, 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, unit the State Board is reconstituted under sub-section (3), be exercised, performed or discharged by such 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 suppression specified in the notification issued under sub-section (1), the State Government may –

 (a) Extend the period of suppression 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 suppression, 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 SUPPRESSION 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, 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 suppression 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 (6 of 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 (6 of 1974), comes into force in any State and the State Government constitutes a 1State Pollution Control Board 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 [ 30 State Pollution Control Board 30 ];

(c) Every officer and other employee serving under the State Board immediately before such dissolution shall be transferred to and becomes an officer or other employee of the 1State Pollution Control Board 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 terms and conditions of service are duly altered by the State Pollution Control Board :

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 and 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 1State Pollution Control Board 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 State Pollution Control Board.

(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 [ 30 State Pollution Control Board 30;

(c) Every officer and other employee serving under the State Board immediately before such dissolution shall be transferred to and becomes an officer or other employee of the 1State Pollution Control Board 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 terms and conditions of service are duly altered by the State Pollution Control Board :

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 and 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 1State Pollution Control Board 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 1State Pollution Control Board.

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1. Subs. by Act 47 of 1987, sec. 15, for “State Board for the Prevention and Control of Water Pollution” (Effective date to be notified).

50. Power to amend the Schedule

[Rep. by the Air (Prevention and Control of Pollution) Amendment Act, 1987 (47 of 1987), sec. 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 standards 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 RULE.

(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 matter 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 allowances 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;

1(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; 34 ]

(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 House 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.

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1. Subs. by Act 47 of 1987, sec. 23, for clause (f) (w.e.f. 1-4-1988).

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 matters 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 matter, namely :-

1(a) The qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control required for appointment as member-secretary of a State Board constituted under the Act; 35

2(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 purposes 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 sub-

section (3) of Section 21;

(n) The authorities or agencies to whom information under sub-section (1) of Section 28 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 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 sub-section (1) of Section 29;

(u) The qualifications 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;

3(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 sub-section (1) of Section 36;

4(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 in clause (aa) thereof, shall be made, varied, amended or repealed without consulting that Board.

—————————————————————

1. Ins. by Act 47 of 1987, sec. 24 (w.e.f. 1-4-1988).

2. Clause (a) renumbered as clause (aa) by Act 47 of 1987, sec. 24 (w.e.f. 1-4-1988).

 3. Subs. by Act 47 of 1987, sec. 24, for clause (w) (w.e.f. 1-4-1988).

4. Ins. by Act 47 of 1987, sec. 24 (w.e.f. 1-4-1988).

5. Subs. by Act 47 of 1987, sec. 24, for ‘‘in clause (a)” (w.e.f. 1-4-1988).

HE SCHEDULE –

OMITTED BY THE ACT 47 OF 1987.

Bydeb

Aircrafts Amendment Act, 2007

1. Short title and commencement.

AIRCRAFT (AMENDMENT) ACT, 2007 1

[ACT NO. 44 OF 2007]

[December 5, 2007]

An Act further to amend the Aircraft Act, 1934

Be it enacted by Parliament in the Fifty-eight Year of the Republic of India as follows:-

Prefatory Note-Statement of Objects and Reasons.-At present the Central Government through various provisions of the Aircraft Act, 1934 and the rules made thereunder exercises control in respect of manufacture, possession, use, operation, sale, import and export of civil aircrafts and licensing of aerodromes.

2. In the last two decades, significant developments have taken place in the civil aviation sector in India. The domestic air transport services were opened to the private sector in 1994 and the management and operation of the airports, the navigation, communication facilities and the air traffic control at airports were transferred to the Airports Authority of India with effect from the 1st April, 1995. Now, with vast developments in technology, communication, navigation, surveillance and air traffic management are switching over from ground based to satellite based technology. As a result of these developments, a need has arisen to lay down appropriate safeguards to ensure protection of civil aviation against acts of unlawful interference.

3. Keeping in view the above aspects as well as standards laid down by the International Civil Aviation Organisation (ICAO) for safety and security of civil aviation and also to give effect to various provisions of the Convention on International Civil Aviation popularly known as Chicago Convention, certain amendments are proposed to be made to the Aircraft Act, 1934.

4. The Aircraft (Amendment) Bill, 2006, inter alia, seeks-

(a) to regulate foreign registered aircraft which is for the time being operating in or over India;

(b) to empower the Central Government for-

(i) licensing of personnel engaged in air traffic control;

(ii) certification, inspection and regulation of communication, navigation and surveillance and air traffic management;

(iii) safeguarding civil aviation against acts of unlawful interference and to ensure civil aviation security; and

(iv) investigation of incident along with accident.

(c) to empower the Director General of Civil Aviation for performing safety oversight functions.

(d) to impose penalty for contravention of the provisions of the Chicago Convention;

(e) to enhance quantum of existing penalties for violation of rules relating to carriage in aircraft of arms or explosives or providing false information or abetment of offences or non-compliance of directions with a view to achieve desired deterrent effect which would go a long way in raising the compliance level;

(f) to enlarge the scope of the powers of Director General of Civil Aviation.

5. The Bill seeks to achieve the above objects.

1. Received the assent of the President on December 5, 2007 and published in the Gazette of India, Extra., Part II, Section I, dated 6th December, 2007, pp. 1-3, No. 53

(1) This Act may be called the Aircraft (Amendment) Act, 2007.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Amendment of Section 1.

In Section 1 of the Aircraft Act, 1934 (22 of 1934) (hereinafter referred to as the principal Act), in sub-section (2),-

(i) in clause (a), the word “and” shall be omitted;

(ii) after clause (b), the following clauses shall be inserted, namely:-

“(c) to, and to the persons on, aircraft registered outside India but for the time being in or over India; and

(d) to an aircraft operated by a person who is not a citizen of India but has his principal place of business or permanent residence in India.

3. Amendment of Section 4.

In Section 4 of the principal Act, for the words “The Central Government”, the words and figures “Subject to the provisions of Section 14, the Central Government” shall be substituted.

4. Insertion of new Section 4-A.

After Section 4 of the principal Act, the following section shall be inserted, namely:-

“4-A. Safety oversight functions.-The Director General of Civil Aviation or any other officer specially empowered in this behalf by the Central Government shall perform the safety oversight functions in respect of matters specified in this Act or the rules made thereunder.”

5. Amendment of Section 5.

In Section 5 of the principal Act,-

(a) in sub-section (1), for the words “The Central Government”, the words and figures “Subject to the provisions of Section 14, the Central Government” shall be substituted;

(b) in sub-section (2),-

(i) for clause (b), the following clauses shall be substituted, namely:-

“(ii) the licensing, inspection and regulation of aerodromes, the conditions under which aerodromes may be maintained and the prohibition or regulation of the use of unlicensed aerodromes;

(ba) the fees which may be charged at those aerodromes to which the Airports Authority of India Act, 1994 (55 of 1994) does not apply or is not made applicable;”

(ii) after clause (g), the following clauses shall be inserted, namely:-

“(ga) the licensing of persons engaged in air traffic control;

(gb) the certification, inspection and regulation of communication, navigation and surveillance or air traffic management facilities;

(gc) the measures to safeguard civil aviation against acts of unlawful interference;”.

6. Amendment of Section 5-A.

In Section 5-A of the principal Act, in sub-section (l), for the words, brackets, letters and figures “clauses (b), (c), (e), (f), (g), (h) and (m) of subsection (2) of Section 5, to any person or persons engaged in aircraft operations or using any aerodrome”, the words, brackets, letters and figures “clauses {ad), (b), (c), (e) (f), (g), (ga), (gb), (gc), (h), (i), (m) and (qq) of sub-section (2) of Section 5, to any person or persons using any aerodrome or engaged in the aircraft operations, air traffic control, maintenance and operation of aerodrome, communication, navigation, surveillance and air traffic management facilities and safeguarding civil aviation against acts of unlawful interference” shall be substituted.

7. Amendment of Section 7.

In Section 7 of the principal Act,-

(a) in sub-section (1), for the portion beginning with the words ‘The Central Government”, and ending with the words “of any accident”, the words and figures “Subject to the provisions of Section 14, the Central Government may, by notification in the Official Gazette, make rules providing for the investigation of any accident or incident” shall be substituted;

(b) in sub-section (2), for the word “accident” wherever it occurs, the words “accident or incident” shall be substituted.

8. Amendment of Section 8.

In Section 8 of the principal Act, in sub-section (2), for the words “The Central Government”, the words and figures “Subject to the provisions of Section 14, the Central Government” shall be substituted.

9. Amendment of Section 8-A.

In Section 8-A of the principal Act, for the words “The Central Government”, the words and figures “Subject to the provisions of Section 14, the Central Government” shall be substituted.

10. Amendment of Section 8-C.

In Section 8-C of the principal Act, for the words “The Central Government”, the words and figures “Subject to the provisions of Section 14, the Central Government” shall be substituted.

11. Amendment of Section 10.

In Section 10 of the principal Act,-

(i) in sub-section (1), for the word “fine”, the words “fine which may extend to ten lakh rupees” shall be substituted;

(ii) in sub-section (1-A), for the words “one year, or fine which may extend to two thousand rupees”, the words “three years, or with fine which may extend to ten lakh rupees” shall be substituted;

(iii) in sub-section (2),-

(a) for the word and figure “Section 7”, the words and figures “Section 4, Section 7” shall be substituted;

(b) for the words “three months, or with fine which may extend to one thousand rupees”, the words “two years, or with fine which may extend to ten lakh rupees” shall be substituted.

12. Amendment of Section 11.

In Section 11 of the principal Act, for the words “six months, or with fine which may extend to one thousand rupees”, the words “two years, or with fine which may extend to ten lakh rupees” shall be substituted.

13. Amendment of Section 11-A.

In Section 11-A of the principal Act, for the words “six months”, the words “two years” shall be substituted.

14. Amendment of Section 11-B.

In Section 11-B of the principal Act,-

(a) in sub-section (1), for the words “six months, or with fine which may extend to one thousand rupees”, the words “two years, or with fine which may extend to ten lakh rupees” shall be substituted;

(b) in sub-section (2), the following proviso shall be inserted, namely:-

“Provided that the power to make rules under this sub-section shall be subject to the provisions of Section 14.”