The Indian Law

The Indian Legislature has enacted Air (Prevention and Control of Pollution) Act, 1981 for the prevention, control and abatement of air pollution. This enactment was on the basis of the decision taken at the UN Conference on the Human Environment held in Stockholm in June,1972. Government also enacted Air (Prevention and Control of Pollution) Rules, 1981 so as to implement the enactment. Several notifications were also issued for the controlling the air pollution

Supreme Court of India (SC) had the occasion to consider the propriety of declaration of an area as Air Control Area in the absence of rules. Court has held that merely because the Rules are absent, the State would not be divested of its powers to notify in the Official Gazette any area declaring it to be air pollution control area.

Prior Consent for industries

Every industry has to obtain prior consent for establishment, thereafter fresh consent should be obtained before operating the unit. After obtaining the consent for establishment , a fresh consent for operation is not envisaged by law.

A person being aggrieved by the running of a rice mill has approached the HC. The rice mill owner has been granted exemption from the purview of the Act. The parliament has not vested any discretion with the State Board to grant exemption to any particular industrial plant or class of persons, the Karanataka HC has held.

The guidelines are in the form of general information to all the industrial units which are proposed to be established or operating in accordance with law. They are required to perform or run their industrial operations in accordance with the guidelines and are valid, according to the Patna HC.

Can the consent granted be challenged in Civil Court. The Madras HC has held that those matters which the Appellate Authority is empowered to decide, the jurisdiction of the Civil Court is taken under Section 46 of the Air Act. As per Section 46, if there is an order by the Authority concerned, either by the State Board or by any one, the aggrieved person cannot challenge the same before the Civil Court and the only remedy for him is to approach the Appellate Authority under the Act to vindicate his grievance and not all matters are barred under Section 46 of the Act, the court added.

Offences under the Air Act

Madras HC has held that if an offence of air pollution is committed by one of the units of the company, the Managing Director of the parent company is liable to be prosecuted. Defects in pleading in complaint can be cured by correction, the court added.

But if Chairman who is not in charge of the affairs of the company is prosecuted the HC has quashed the proceedings for the reason that there is nothing on record to connect them directly with the business of the company.

Calcutta High Court had the occasion to consider whether the Air Appellate Authority could review the decision rendered by it. By interpreting the provision of West Bengal (Prevention and control of Pollution) Rules, 1983 the court held that power to review is not conferred on the State Appellate Authority. It cannot clothe itself with said powers by virtue of Practice Direction framed by it, when statutory provisions are totally silent about it.

Case laws

Several High Courts had the occasion to pass judgments interpreting the law on the subject. To prevent the air pollution in Cochin city, the Kerala HC sought the expertise opinion of the NEERI. The Court directed the State Pollution Control Board to monitor the implementation of the conditions imposed in the consent orders to the various industries and see the conditions are complied with before the consent orders are renewed yearly. The Cochin Corporation was directed to take immediate steps to maintain the open sewage canal and prevent the dumping of the garbage in the open sewage canal by effective steps. The State Government is also directed to take immediate steps to implement the rules regarding automobile exhaust funnies causing air pollution.

No objection certificate was granted by the Pollution Control Board for the establishment of setting up of captive power plant . Subsequently it was cancelled on the ground that the aforesaid plant coming within the radius of 25 kms of reserved forest and therefore clearance of Central Government was required . Jharkand HC has held that the cancellation of consent granted is without issuing notice and set aside the cancellation order.

Certain Mills in Tamil Nadu were running with Diesel Generator sets. Due to tremendous scientific and technological advancement in the manufacture of captive generator sets, for more efficiency, the Mills used Furnace Oil Generators. Generation of power through Furnace Oil Generator is found to be purer and more sufficient. They have been asked to take fresh consent from the Board. Challenging the same they approached the Madras HC. It was contended that a generator using furnace oil is claimed to be more fuel efficient. The Court held that the fact remains it is a co-generation plant - requires environmental clearance from the State Government / Board - ought to make out application to the State Government / Board stating the nature of the Furnace Oil Generator and the Fuel efficiency etc.

When the authorities banned the dusting and cleaning of old gunny bags in thickly populated area, he Merchants Association approached the Andhra Pradesh HC contending that the ban restrains them from doing business and is thus an infringement of their right to do business enshrined under Art. 19 (1)(g) of the Constitution of India. The HC repelling the contention has held that the right to carry on business in old and used gunny bags is not absolute. Trade carried on involving activity of dusting and cleaning of old gunny bags creating air pollution . Direction given by the State Government to shift the business from thickly populated area to environmentally safer place is not improper, the court added.

Kerala HC has held that consent can be obtained even after the unit has become functional . The Act is applicable to every category of industrial activities, the Court added.

When a Cement silicosis plant was proposed to be set up in Cochin port the same was challenged before the Kerala HC. When the case came up for consideration it is submitted that they have not been given clearance by the Central Government. Accepting the same the Court has observed that such plants are are likely to endanger environment and ecology to be avoided.

When a cement godown in a shopping complex was established near a residential area the same was challenged before the Kerala HC. The court has held that compelling citizens to inhale obnoxious dust (fine powder of asbestos) which can led to serious form of lung disease "asbestosis" amounts to deprivation of his life through the process of deprivation may not be quick yet it is slow but certain. Forcing a person to live in sub-human conditions also amounts to the taking away of their life, not by execution of death sentence, but by slow and gradual process by which robbing him of his human qualities and graces, a process which is more cruel than sending a man to the gallows.

A complaint was raised against a company manufacturing Calcium Carbide. It is said that several chimneys/stacks spew out enormous output of Carbon Monoxide, Carbondioxide and Sulpher dioxide into ambient, air, without adequate dispersion facilities, causing toxicity of air and fall out of lethal particulate material. Kerala HC granted the Company a fixed time to take regulatory measures to bring down pollution to tolerance limits indicated by the Pollution Control Board

Likewise the Kerala HC has came to the consider the question of pollution created by the working of a factory. The court has held that if the atmosphere gets contaminated with carbon particles, visible or invisible, there is every risk that they would get themselves deposited on the bodies and get into the respiratory organs of the people residing in the neighborhood. To hold that the deposit of carbon black is a public nuisance it need not necessarily be a hazard to the health of the people. There is no scope for doubt that deposit of carbon black on the clothes of residents which make them soiled and their deposit on food articles would cause annoyance to their own workers. The working of the factory is a nuisance to the public and was also injurious to the health and physical comfort of the community. Danger that the general public has to face by the service mixing of carbon outweighs the advantage in the form of equipments to prevent dissemination of carbon outweighs the advantage in the form of jobs for few persons and that too under threat of hazards to their own health, the court added.

Andhra Pradesh HC has taken suo motu proceedings on the basis of newspapers reports stating about the spreading of panic owing to a mischievous gas with foul smell which engulfed a part of the city continuously for a few days resulting in breathing problem to the residents in a particular area. The Pollution Control Board has stated taken steps. However, in a situation of this nature, the court felt that it may be necessary to issue other and further directions so that similar incidents may not occur in future. The Board was directed to carry on surprise checks of the industries and carry out the requisite tests with a view to find out as to whether leakage of any poisonous gas from those industrial units which had been identified, is taking place or not.

The police authorities as also the officers of the Board would immediately seize and prosecute the tankers which had been carrying the effluents and have been discharging the same on the public streets. The officers of the motor vehicles department would cause a random check of such tankers with a view to find out as to whether they have adopted any method which would run contrary to the provisions of the Motor Vehicles Act, 1988 and the rules framed there under and in the event it is found that any violation of such law has taken place, and also the tankers being used without any registration number or mark as per the Motor Vehicles Act and the rules and containing a discharge pipe, they would immediately seize such tankers, the court added.

In Madhya Pradesh a factory manufacturing glucose saline. where a boiler was installed and coal was used as fuel. The emitted smoke and ash from this boiler caused a great deal of atmospheric pollution resulting in a deleterious effect on the residence of that locality. It was also alleged that the factory was being run round the clock; at times invariably boiling water used to fall in her house. . The nuisance to the community at large is not by mere installation of the boiler but also by the factory itself. The court affirmed the order of the Magistrate.

Orissa HC has reminded that the coal-mines workers operating in the area have to ensure that at the altar of industrial development, environment and consequentially health of the people do not get sacrificed. It is the function of Pollution Board to ensure that rigid guidelines required to be followed in the matter of air and water pollution are maintained, and no deviation is done. For industrial development, the people should not become ill on account of collapse of building, surface erosion and water pollution, the court added.

Orissa H C has held that only the Pollution Control Board is authorised to issued directions under Sec. 31-A of the Air Act. Setting aside the directions issued by the Member Secretary ,n the absence of general or special order of Board delegating its power under Sec.31-A , the order is illegal. In the said case a factory set up for manufacture of cattle and poultry feed. The Secretary to the Board issued an order for closure of the factory for the reason that there is every possibility of emission of fouled odors or emission of foul odur. HC has held that itself is no ground to direct the shifting or closure of industry.

Karntaka High Court also of the view that the "remedial measures" contemplated must be understood as such measures which mitigate the emission of air pollutants. The harsh step of prohibiting the working of the factory is neither warranted not has it the legal sanctity.

The Andhra Pradesh HC finding that the company is undertaking very scientific method of drilling and blasting in the leased area issued direction to include in the watch list of the Board.

In identical situation the Karantaka HC has held that Chairman has not been delegated the power to pass orders under Sec.31-A. Therefore the order passed him is without power. Therefore the order is null and void.