Section 33A: Closure, and Cutting Off Water and Electricity

"In the exercise of its powers and performance of its functions under this Act". The direction must be referable to a function under the Act. This is the real limit and it is the one litigated: a direction that does not serve a function under this Act is beyond the section.

"To any person, officer or authority". Not confined to a polluter. A direction may go to a distribution company, to a municipal corporation, to a State officer.

"Shall be bound to comply". No discretion in the recipient.

"In writing". A direction that is not in writing is not a direction under this section.

The Explanation, and why it was needed

Without it there would be a real argument that a general power to give directions does not extend to closing a business down or to cutting off a utility, both of which are drastic and neither of which the main part of the section mentions. The Explanation says the power includes both, "for the avoidance of doubts", and the same words appear in section 31A of the Air Act and section 5 of the Environment (Protection) Act.

Clause (a), closure, prohibition or regulation. Three graduated remedies, and a Board that jumps to closure where regulation would do invites the argument that it acted disproportionately.

Clause (b), stoppage or regulation of the supply of electricity, water or any other service. This is what makes closure effective. A closure direction can be defied by a determined occupier; a plant with no power cannot run. The words "or any other service" are wide enough to reach a supply of gas or of raw water.

Natural justice, which the section does not mention

The section says nothing about hearing the person to be closed down. The courts have supplied the requirement.

The position, in short, is that a direction under section 33A ordinarily requires notice and an opportunity to be heard, because it affects a valuable civil right and may destroy a business, and the requirement is dispensed with only where the urgency of the situation genuinely does not permit it. A Board acting in an emergency has section 32(1)(c), which expressly allows an immediate restraining order; a Board acting under section 33A in the ordinary course is expected to hear first.

A student should state that as the position and should notice its source: it comes from the general law, not from the words of the section.

Section 33B: where the challenge goes

Inserted when the National Green Tribunal Act 2010 came into force. A person aggrieved by any of three things may appeal to the Tribunal, in accordance with that Act:

(a) an order or decision of the appellate authority under section 28, made on or after the commencement of the NGT Act;

(b) an order passed by the State Government under section 29, on or after that commencement;

(c) directions issued under section 33A by a Board, on or after that commencement.

Three points.

The consent route and the direction route converge at the Tribunal. A consent dispute goes Board, appellate authority, Tribunal. A direction goes Board, Tribunal, with no intermediate appeal. Both end in the same place.

The date matters. The appeal lies against an order or direction made on or after the commencement of the NGT Act. Anything earlier was a matter for the writ court.

The writ jurisdiction survives. Section 33B creates a statutory appeal; it cannot and does not take away Articles 226 and 32. In practice the High Court will ask why the statutory remedy was not used.

A worked example

A Board finds that a unit has bypassed its effluent treatment plant for months. It issues a direction under section 33A closing the unit and directing the distribution company to disconnect supply.

Is the direction good against the unit? Provided it is in writing, is referable to the Board's functions under the Act, and was preceded by notice and an opportunity to be heard unless the urgency genuinely did not permit it.

Is it good against the distribution company? Yes. The section reaches any person, officer or authority; the Explanation names the stoppage of electricity; and the non obstante clause answers the company's statutory obligation to supply.

What can the unit do? Appeal to the National Green Tribunal under section 33B. Not to the appellate authority under section 28, which is confined to orders under sections 25, 26 and 27.

And if the Board had merely required the treatment plant to be run continuously and monitored? That is "regulation" within clause (a), a lesser measure, and a Board that chooses closure where regulation would have sufficed should expect to be asked why.

Distinctions

What it does NOT mean

It does not mean a Board may direct anything at all. The direction must be in the exercise of its powers and the performance of its functions under this Act.

It does not mean no hearing is required. The section is silent and the general law supplies the requirement, subject to genuine urgency.

It does not mean a direction is beyond challenge. Section 33B gives a statutory appeal to the Tribunal.

It does not mean the Board outranks the Centre. The section is expressly subject to any directions the Central Government may give, and section 18 makes a State Board bound by directions of the Central Board and the State Government.

Quick revision

• 33A: notwithstanding any other law, but subject to the Act and to Central Government directions, a Board may issue any directions in writing to any person, officer or authority, who is bound to comply.
• Explanation: the power includes directing (a) closure, prohibition or regulation of an industry, operation or process, and (b) stoppage or regulation of the supply of electricity, water or any other service.
• Natural justice is not in the section but is supplied by the general law, subject to genuine urgency.
• 33B: appeal to the National Green Tribunal against (a) an appellate authority's order under section 28, (b) a State Government order under section 29, and (c) a direction under section 33A, in each case made on or after the commencement of the NGT Act 2010.
• The Air Act counterpart is section 31A with section 31B; the EPA counterpart is section 5 with section 5A.

Test yourself

1. What does the Explanation to section 33A add, and why is it necessary? It declares 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 is necessary because the main part of the section speaks only of "directions", and without the Explanation there would be a serious argument that so drastic a step as closing a business, or cutting off a utility supplied by a third party under another statute, was not within a general power to direct.

2. To whom may a direction under section 33A be issued? To any person, officer or authority, and not merely to a polluter. That is what allows a Board to direct an electricity distribution company to disconnect a supply, or a municipal corporation to stop supplying water, even though neither has discharged anything, and the non obstante clause means that the recipient's obligations under its own governing statute are no answer.

3. Where does the challenge to a direction under section 33A lie? To the National Green Tribunal, under section 33B(c), in accordance with the National Green Tribunal Act 2010, provided the direction was issued on or after the commencement of that Act. It does not lie to the appellate authority under section 28, whose jurisdiction is confined to orders under sections 25, 26 and 27.

4. Must a Board hear a unit before closing it under section 33A? Ordinarily yes, although the section says nothing about it. The requirement comes from the general law, because a closure direction affects a valuable civil right and may destroy a business, and it is dispensed with only where the urgency of the situation genuinely does not permit a hearing. Where a true emergency exists the Board also has the express power in section 32(1)(c) to issue an immediate restraining order.