Appeals, Section 31A Directions and the Section 31B Appeal

Note what section 31 does notcontain. The Water Act's section 28(5) sets out what the appellate authority may do about an unreasonable condition or an unreasonable variation, in two mirrored halves. Section 31 has no such sub-section. The authority's powers are therefore the ordinary powers of an appellate body, which is wider in one sense and less certain in another.

And there is no revision. The Water Act's section 29 lets the State Government call for the records and satisfy itself as to legality or propriety. The Air Act has no counterpart.

Section 31A: the power to direct

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.

Word for word section 33A of the Water Act, and the analysis in that chapter applies without change: the non obstante clause, the two limits, the requirement that the direction be referable to a function under this Act, the width of "any person, officer or authority", the writing, and the Explanation that makes closure and disconnection available.

Natural justice is likewise not in the section and is supplied by the general law, so that notice and an opportunity to be heard are ordinarily required and are dispensed with only where the urgency genuinely does not permit them.

And note the contrast with section 17(1)(e). That clause also lets a State Board give directions, but only on inspection and only for steps for the prevention, control or abatement of air pollution. Section 31A is the general power, and it is the one that closes plants.

Section 31B: the appeal to the Tribunal

Any person aggrieved by an order or decision of the Appellate Authority under section 31, made on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of that Act, in accordance with the provisions of that Act.

One route, not three. The Water Act's section 33B names three things: an appellate authority's order under section 28, a State Government order under section 29, and a direction under section 33A. This Act names only the appellate authority's order under section 31, because this Act has no revision and because its section 31 appeal is wide enough to take a direction in the first place.

The date. The order or decision must be made on or after the commencement of the NGT Act 2010.

And the writ jurisdiction survives, as always, though a High Court will ask why the statutory route was not used.

A worked example

A State Board issues a direction under section 31A closing a plant and directing the electricity distribution company to disconnect supply.

Against whom is the direction good? Both. The section reaches any person, officer or authority, the Explanation names the stoppage of electricity, and the non obstante clause answers the distributor's own statutory duty to supply.

Where does the plant go? To the appellate authority under section 31, within thirty days of communication, because section 31 covers an order made by the State Board under this Act and is not confined to consent decisions. From there to the National Green Tribunal under section 31B.

Compare the same facts under the Water Act. A direction under section 33A goes straight to the Tribunal under section 33B(c), with no intermediate appeal. Two Acts, two routes for the same kind of direction, and a lawyer has to know which Act the direction was issued under.

And if the Board had merely required continuous monitoring? That is "regulation" within clause (a) of the Explanation, a lesser measure, and a Board that chooses closure where regulation would do should expect to be asked why.

Distinctions

What it does NOT mean

It does not mean the appellate authority may do anything. Its powers are those of an appellate body, and the absence of a provision like section 28(5) of the Water Act does not enlarge them beyond the appeal before it.

It does not mean section 31A directions escape review. They are challengeable under section 31 and thereafter under section 31B, and in any event by writ petition.

It does not mean a hearing is unnecessary before closure. The general law requires one, subject to genuine urgency.

It does not mean the State Government may revise a Board's order. The Air Act has no revisional provision.

Quick revision

• 31: appeal by a person aggrieved by any order made by the State Board under this Act, within thirty days of communication, extendable for sufficient cause, to an authority of one or three persons constituted by the State Government, which hears the appellant and the Board. No provision equivalent to section 28(5) of the Water Act, and no revision.
• 31A: identical to section 33A of the Water Act. Notwithstanding any other law, directions in writing to any person, officer or authority, who is bound to comply, and the Explanation covers closure and stoppage of electricity, water or any other service.
• 31B: appeal to the National Green Tribunal against an order or decision of the appellate authority under section 31 made on or after the commencement of the NGT Act 2010.
• Contrast section 33B of the Water Act, which also takes a direction and a State Government revision straight to the Tribunal.

Test yourself

1. How does the appeal under section 31 of the Air Act differ in scope from the appeal under section 28 of the Water Act? Section 28 of the Water Act confines the appeal to an order made by the State Board under section 25, section 26 or section 27, that is, to consent decisions and their conditions. Section 31 of the Air Act allows an appeal against any order made by the State Board under the Act, without limitation. The air appeal is therefore much wider, and it is the route by which a direction under section 31A is challenged.

2. Why does section 31B name only one kind of order, when section 33B of the Water Act names three? Because the Air Act has no revisional power corresponding to section 29 of the Water Act, so there is no State Government order to appeal against; and because the section 31 appeal is wide enough to take a direction under section 31A in the first place, so no separate route to the Tribunal is needed for directions. Section 33B of the Water Act has to name directions expressly because the appeal under section 28 of that Act does not reach them.

3. State the two limits on the direction power in section 31A. That it is subject to the provisions of the Act, so a direction inconsistent with the Act is bad; and that it is subject to any directions the Central Government may give in that behalf. A third limit is implicit in the words "in the exercise of its powers and performance of its functions under this Act": the direction must be referable to a function under this Act, which is the limit most often litigated.

4. What does the Explanation to section 31A declare, and why does it matter? That the power to issue directions includes the power to direct the closure, prohibition or regulation of any industry, operation or process, and the stoppage or regulation of the supply of electricity, water or any other service. It matters because the main part of the section speaks only of directions, and without the declaration there would be a serious argument that so drastic a step was outside a general power to direct. The power to cut off a utility supplied by a third party is what makes a closure direction effective.