The Tail of the Air Act

The second limb is the same: no injunction by any court or other authority against action taken or to be taken under the Act.

And what survives is the same: a suit against a polluter, the writ jurisdiction, and the National Green Tribunal's jurisdiction under its own Act.

Section 47: supersession of a State Board constituted under this Act

The grounds. That the Board has persistently made default in the performance of its functions, or that circumstances exist which render it necessary in the public interest.

The safeguard. Before a notification on the default ground, the State Government shall give the Board a reasonable opportunity to show cause and shall consider its explanations. No such requirement attaches to the public interest ground.

The period. Not exceeding six months, extendable by a further term not exceeding six months.

Here is a difference worth marking. Under sections 61 and 62 of the Water Act the initial period of supersession may be up to one year, extendable by six months. Under section 47 of this Act it is up to six months, extendable by six months. The Air Act is the shorter.

The effect. All members vacate office; all the Board's powers, functions and duties are exercised by such person or persons as the State Government directs until reconstitution; and all property owned or controlled by the Board vests in the State Government until reconstitution.

Reconstitution. At the end of the period the Government may extend it by up to six months or reconstitute the Board by fresh nomination or appointment, and a person who vacated office is eligible for nomination or appointment. It may reconstitute at any time before the period expires.

Section 48: the special provision, which is the clever one

Where the Central Board or a State Board constituted under the Water Act is superseded under that Act, this section provides for what happens to that Board's functions under this Act during the supersession.

The problem it solves is created by sections 3 and 4. Because the Water Act's Boards are the Boards under this Act, a supersession under the Water Act would otherwise leave the air functions in the hands of a Board that no longer has any members. Section 48 supplies the answer, so that the person or persons exercising the Water Act Board's functions during its supersession exercise its air functions too.

That is a small provision doing necessary work, and it is exactly the kind of consequential drafting that follows from borrowing another Act's institutions.

Section 49: dissolution of a State Board constituted under this Act

Where a State Board has been constituted under section 5 of this Act because the State had no Water Act Board, and a Water Act Board is later constituted for that State, the Board under this Act is dissolved and its functions pass to the new Board, with provision for its staff, property and liabilities.

Read sections 48 and 49 together and the design is complete: section 4 borrows a Water Act Board where one exists, section 5 creates one where it does not, section 49 dissolves the section 5 Board when a Water Act Board appears, and section 48 keeps the air functions running when a Water Act Board is superseded.

Sections 50 to 54: the closing provisions

Section 50 deals with the effect of other laws. Section 51 requires a Board to maintain a register containing particulars of the conditions imposed under section 21, open to inspection by any person interested or affected, on the pattern of section 25(6) of the Water Act.

Section 53, the Central Government's rule-making power, over the matters the Act assigns to it. It acquired a new clause in 2023: the manner of holding an inquiry and imposing penalties by the adjudicating officer under section 39A(1), which is the machinery of the decriminalised regime that Module IV works through.

Section 54, the State Government's rule-making power, exercised after consultation with the State Board where the Act so requires, with the rules laid before the State Legislature.

A worked example

A State that had no Water Act Board constituted one under section 5 of the Air Act in 1985. In 1995 it adopted the Water Act and constituted a Board under section 4 of that Act.

What happens to the air Board? Section 49 dissolves it, and its functions, staff, property and liabilities pass to the new Board, which is now the State Board for both Acts by force of section 4 of this Act.

In 2020 the State Government supersedes the Water Act Board under section 62 of that Act. Who does the air work?

Section 48. The person or persons exercising the superseded Board's functions under the Water Act exercise its functions under this Act as well. Without the section, the air functions would be exercisable by nobody.

And could the State Government instead have superseded the Board under section 47 of this Act? No. Section 47 applies to a State Board constituted under this Act, and this Board was constituted under the Water Act.

What it does NOT mean

Section 46 does not stop a victim suing the polluter. What it excludes is a suit about something the appellate authority under section 31 could have decided, and an injunction against action taken under the Act. A claim in nuisance or negligence against the industry itself is untouched, and so is an application to the National Green Tribunal.

Section 47 does not apply to a Water Act Board. It applies to a Board constituted under this Act, and section 48 deals with the other case.

Supersession is not dissolution. Section 47 suspends the Board's membership; section 49 dissolves a Board altogether, and for a different reason.

Section 42 is not an immunity. It shields what was done, or intended to be done, in good faith, so an act done maliciously or for a collateral purpose falls outside it entirely.

Quick revision

• 42 good faith. 44 public servants, the reference to the Indian Penal Code now read as the Bharatiya Nyaya Sanhita 2023. 45 returns, a State Board reporting to the State Government and the Central Board.
• 46: bar on the civil court, wider than the Water Act's because section 31 gives an appeal against any order of a State Board; plus the no injunction limb.
• 47: supersession of a Board constituted under this Act, for persistent default (show cause required) or public interest (not required), for up to six months, extendable by six. Members vacate, property vests in the State Government, a superseded member is eligible for renomination.
• 48: where a Water Act Board is superseded under that Act, its air functions are exercised by the persons exercising its water functions.
• 49: a Board constituted under section 5 of this Act is dissolved when a Water Act Board is constituted for the State.
• 51: a register of section 21 conditions, open to inspection. 53(new clause, 2023): rules on the adjudicating officer's inquiry and penalties under section 39A.

Test yourself

1. Why is the bar on the civil court wider under the Air Act than under the Water Act? Because both Acts bar a civil court from any matter which the appellate authority constituted under that Act may determine, and the two appellate jurisdictions differ. Under section 28 of the Water Act the appellate authority may determine only orders under sections 25, 26 and 27. Under section 31 of the Air Act it may determine any order made by the State Board under the Act. The class of excluded matters is therefore much larger under the Air Act.

2. What problem does section 48 solve? The one created by section 4. Because a State Board constituted under the Water Act is the State Board for the purposes of the Air Act, a supersession of that Board under the Water Act would leave the air functions in the hands of a Board with no members and no obvious substitute, since section 47 of this Act applies only to a Board constituted under this Act. Section 48 provides that where such a Board is superseded under the Water Act, its functions under this Act are exercised alongside its functions under that one.

3. How long may a State Board constituted under the Air Act be superseded for? For such period, not exceeding six months, as the notification specifies, extendable by a further term not exceeding six months. That is shorter than under the Water Act, where sections 61 and 62 permit an initial period of up to one year, likewise extendable by six months.

4. What is the difference between supersession under section 47 and dissolution under section 49? Supersession is temporary and disciplinary: the Board continues to exist, its members vacate office, its powers are exercised by the Government's nominee and its property vests in the Government until it is reconstituted. Dissolution under section 49 is permanent and structural: a Board constituted under section 5 of this Act ceases to exist when a Board is constituted for the State under section 4 of the Water Act, because that Board then becomes the State Board for air purposes by force of section 4 of this Act.