The Commission, the Air Act and the Tail of the CAQM Act
Chapter Fifty-Nine
Syllabus topic 3, "Pollution of Air"
Pages 267 to 271 of 783
In one line
Inside its region the Commission displaces every other body, no civil court may question it, its Act overrides everything, and the appeal goes to the National Green Tribunal.
In exam wording: section 18 of the Commission for Air Quality Management in National Capital Region and Adjoining Areas Act 2021 provides that an appeal shall lie to the National Green Tribunal against any order, direction or action taken by or on behalf of the Commission; section 22 bars the civil court; section 28(1) gives the Act overriding effect notwithstanding anything inconsistent in any other law, document, judgment, order, bye-law, rule, regulation or notification having the force of law; and section 28(2) provides that on the notification of the Commission's constitution no other individual, body or authority shall act in the field it occupies.
Section 18: the appeal
An appeal shall lie to the National Green Tribunal constituted under the National Green Tribunal Act, 2010 against any order, direction or action taken by or on behalf of the Commission constituted under section 3.
One sentence, and it is wider than either of the older Acts.
"Any order, direction or action". Not only an order, and not only a direction: any action. So a challenge to something the Commission has done, rather than to a formal instrument, lies to the Tribunal.
"By or on behalf of the Commission". The Commission acts through sub-committees under section 11, through officers appointed under section 12(2)(x), and through special investigation teams under section 19. The words catch all of them.
And there is no intermediate appellate authority. The Water Act and the Air Act each interpose an authority constituted by the State Government, and only then go to the Tribunal. Here the Tribunal is the first and only forum of appeal.
Section 19: special investigation teams
Notwithstanding anything in any other law or any judicial order by any court, the Commission may, where it considers it necessary, constitute one or more special investigation teams of such officers or persons as it thinks necessary.
The words "or any judicial order by any court" are unusual and should be noticed. A statutory power expressed to operate notwithstanding a judicial order is rare, and its evident purpose is to let the Commission act in a field over which the courts had been exercising supervision through committees before 2021.
Sections 20 and 21: the Central Government
Section 20. The Central Government may issue directions to the Commission, which shall be bound by them.
Section 21. The Central Government may call for information from the Commission.
The Commission is therefore a statutory body under the Central Government's direction, in the same way that the Central Board is under section 18(1)(a) of the Water Act and the Air Act.
The Commission, the Air Act and the Tail of the CAQM Act
Section 22: the bar on the civil court
No civil court shall have jurisdiction to entertain any suit, proceeding or dispute pertaining to or arising out of the actions taken or directions issued by the Commission in respect of any matter which the Commission is empowered by or under this Act.
Wider in one way and narrower in another than section 58 of the Water Act.
Wider: it covers a suit, proceeding or dispute, and it reaches anything pertaining to or arising out of the Commission's actions or directions.
Narrower: there is no separate injunction limb. The Water Act and the Air Act both add that no injunction shall be granted by any court or other authority against action taken or to be taken under those Acts. This section relies instead on the width of its own words and on section 28.
Section 28: overriding effect, and the displacement clause
Sub-section (1). The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, any document, judgment, order, bye-law, rule, regulation or notification having the force of law in the territory of India.
That list is much longer than the ordinary overriding clause. Section 60 of the Water Act and section 24 of the Environment (Protection) Act each override an inconsistent enactment or law. This one overrides a judgment and an order as well.
Sub-section (2), and this is the provision that answers the question the chapter title asks. Notwithstanding anything in any other law or any judgment or order of any court, and subject to the provisions of this Act, upon the notification of the constitution of the Commission under section 3, no other individual or body or authority constituted for the purposes of air quality in the Region shall act in the field the Commission occupies.
So on the day the Commission was notified, the State Boards, the Central Board and any authority constituted under another statute ceased to be the deciding bodies for air quality in the National Capital Region and adjoining areas, to the extent of the Commission's field.
The practical answer for a student is therefore this. The Air Act's Boards continue to exist and to administer the Air Act everywhere else. Inside the region, on matters the Commission is empowered to deal with, they act under and subject to the Commission. That is the only place in Indian environmental law where a national regulator has been displaced by a regional one.
Sections 23 to 27 and 29 to 31: the tail
Section 23, protection for action taken in good faith, extending to the Central Government, the Commission, any Member, and any person acting under the direction of either.
The Commission, the Air Act and the Tail of the CAQM Act
Section 24, Members and officers deemed to be public servants.
Section 25, the Central Government's power to make rules; section 26, the Commission's power to make regulations. The distinction is the familiar one: rules by the Government, regulations by the body itself.
Section 27, power to remove difficulties, exercisable within the period the section fixes.
Section 29, repeal and savings of the order constituting the Environment Pollution (Prevention and Control) Authority for the National Capital Region, made under section 3(3) of the Environment (Protection) Act. That body was the Commission's predecessor and its dissolution is what section 28(2) completes.
Sections 30 and 31, savings, and the repeal of the Ordinance that preceded the Act. The Commission was first constituted by an Ordinance, which the Act repeals while saving what was done under it.
A worked example
A brick kiln in Baghpat, in Uttar Pradesh and within the National Capital Region, receives a direction from the Commission to shut for the winter. It holds a valid consent to operate from the Uttar Pradesh Pollution Control Board under section 21 of the Air Act, and an order of a High Court from 2019 permitting it to operate on certain terms.
Is the consent an answer? No. Section 28(1) gives the Act effect notwithstanding anything inconsistent in any other law, and section 28(2) provides that no other body shall act in the field once the Commission is constituted. The consent was granted under a statute the Commission's Act overrides for this purpose.
Is the High Court order an answer? Section 28(1) expressly extends the overriding effect to a judgment and an order. That is a strong provision and its application to a subsisting court order would be argued, but the words are there and they are deliberate.
Where does the kiln go? To the National Green Tribunal, under section 18, against the direction. Not to an appellate authority under section 31 of the Air Act, because the direction is not an order of a State Board.
Can it sue in the civil court? No. Section 22 bars a suit, proceeding or dispute pertaining to or arising out of the Commission's actions or directions in a matter it is empowered to deal with.
What it does NOT mean
It does not mean the State Boards have been abolished. They continue everywhere, and inside the region they act subject to the Commission.
It does not mean the Commission is beyond challenge. Section 18 gives an appeal to the Tribunal against any order, direction or action, and the writ jurisdiction is unaffected by statute.
The Commission, the Air Act and the Tail of the CAQM Act
It does not mean a civil court is barred from everything. The bar is on a suit, proceeding or dispute pertaining to or arising out of the Commission's actions or directions in a matter it is empowered to deal with.
It does not mean the Commission may ignore the Central Government. Section 20 binds it to the Central Government's directions.
Quick revision
- 18: appeal to the National Green Tribunal against any order, direction or action taken by or on behalf of the Commission. No intermediate appellate authority.
- 19: special investigation teams, notwithstanding any other law or any judicial order of any court.
- 20 and 21: the Central Government may direct the Commission and call for information.
- 22: no civil court jurisdiction over a suit, proceeding or dispute pertaining to or arising out of the Commission's actions or directions. No separate injunction limb.
- 28(1): overriding effect over any other law, document, judgment, order, bye-law, rule, regulation or notification having the force of law.
- 28(2): on the Commission's constitution, no other individual, body or authority shall act in its field.
- 29: repeals the order constituting the Environment Pollution (Prevention and Control) Authority for the Region.
Test yourself
1. How does the appeal under section 18 differ from the appeal routes under the Water Act and the Air Act? It is direct and it is wider. Section 18 provides that an appeal shall lie to the National Green Tribunal against any order, direction or action taken by or on behalf of the Commission, with no intermediate forum. The Water Act sends a consent decision first to an appellate authority constituted by the State Government under section 28 and only then to the Tribunal under section 33B, and the Air Act does the same through sections 31 and 31B. And "action" is wider than "order" or "direction", so a challenge to something the Commission has done rather than to a formal instrument is within it.
2. What is unusual about the overriding clause in section 28(1)? Its list. The ordinary overriding clause, as in section 60 of the Water Act or section 24 of the Environment (Protection) Act, gives the Act effect notwithstanding anything inconsistent in any other enactment or law. Section 28(1) extends the same effect over any other law and any document, judgment, order, bye-law, rule, regulation or notification having the force of law. Overriding a judgment or an order of a court by statute is rare and is plainly deliberate here.
3. What does section 28(2) do to the State Boards inside the region? It provides that, notwithstanding any other law or any judgment or order of any court, upon the notification of the Commission's constitution no other individual, body or authority shall act in the field the Commission occupies. The Boards continue to exist and to administer the Water Act and the Air Act everywhere, and everywhere outside the region their air functions are unaffected; inside it, on matters the Commission is empowered to deal with, they act under and subject to it.
The Commission, the Air Act and the Tail of the CAQM Act
4. What body did the Commission replace? The Environment Pollution (Prevention and Control) Authority for the National Capital Region, constituted by an order made under section 3(3) of the Environment (Protection) Act 1986. Section 29 repeals that order with savings, and section 28(2) completes the transfer by providing that no other body shall act in the field once the Commission is notified.
The rest of this subject
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