Module 3- Environmental Laws in India

Chapter- I
The Water (Prevention and Control of Pollution) Act, 1974
Introduction
Right to access to clean and portable drinking water is considered as a Fundamental Rights under
Article 21 of the Constitution of India,1949.1 This act was enacted with the purpose of
preventing, abating, and controlling of water pollution and maintaining or restoring the
wholesomeness of water in the country. It has been made in pursuance of Stockholm
Declaration, 19722. This act is enumerated with 64 sections divided into 8 chapters. This act is
known as the parent Act for Central Pollution Control board.

As water is matter included in State list, but the act has been enacted by Parliament in pursuance
of Article 249 and 250 of Constitution of India. And this act is applicable to all the states who
have adopted this legislation by passing the resolution under clause (1) of Article 252 of
Constitution of India. Act has exclusively defined outlets, water pollution and other definitions.
In the case of F.K. Hussain V. Union of India,3 in this case the Administration was disturbing
water equilibrium by digging wells and this led to increase in salinity in the Andaman and
Nicobar Island, so the court ordered adoption of proper safeguards. And even in the several cases
court held that it is the Government, who should take necessary steps to provide portable
drinking water and such projects should have priority over other developmental projects.4

Central Pollution Control Board (CPCB)

CPCB was constituted in September, 1974 under this act. Further, it is also conferred with the
power and functions under the Air (Prevention and Control of Pollution) Act, 1981. Under
Section 3 the constitution of the board has been given. It can have maximum of 17 members ,
which constitute- a chairman, five officials from Central Government, five officials from the
state board(two can be of local authority), maximum of three representation from various sectors
(non-official) like agriculture fishing, industry, trade etc. , maximum two representative from
companies which are wholly owned , controlled or managed by the Central Government, and one
full time member secretary. All the members are nominated by Central Government.

1
Santosh Govind v. State of Maharashtra (HC), writ petition No. 466 of 1988
2
First International Conference on Human Environment also known as Magna Carta on Human Environment.
3
AIR 1990 Ker 321
4
Vishala Kochikudivella Samarakshana Samiti v. State of Kerela (HC)
There will be no different SPCB for Union Territories, they will directly under the jurisdiction of
CPCB. Further, CPCB has the power to delegate this authorities of Union Territories to any other
body corporate , like SPCB, joint boards or any other body corporate formed for this purpose.

Functions of CPCB: Its main function is to promote cleanliness of streams and well. It acts as
advisory board to the Central Government. Its specific functions are:

i. Coordinate the activities of the SPCB and resolve dispute among them.
ii. Technical assistance to the SPCB, research and investigation related to water pollution.
iii. Conducting training program to employees, researcher, experts and all in consultation
with SPCB.
iv. Organize awareness programs through mass media,
v. Perform the functions of a SPCB, if an order been passed to this effect under section
18(2) of the Act5.
vi. Collecting and publishing technical and statistical data relating to water pollution and
also the manuals, guides etc, to combat water pollution has to be maintained by CPCB.
vii. Plan and execute nationwide programs for prevention, control and abatement of Water
Pollution.
viii. CPCB has to lay down, modify the standards of stream well. Standards with regard to
how much effluent is present in the water. So CPCB has to set standard in India, and it
sets according to SPCB.
ix. Rules, further prescribed by Central and State Government are to be functioned by
CPCB.
x. Power to establish or recognize Laboratories for fulfilling the functions under this section
like analysis of water samples and all.

State Pollution Control Board (SPCB)

Under section 4, State Pollution Control Board (SPCB) is been constituted by state authorities ,
members will be appointed by State government ,in the same manner as it is for CPCB by
Central Government. The difference is that, in place of nomination of Central Government’s
officials in CPCB, officials of state government will be nominated in SPCB and in place of
nomination of State Government’s officials in CPCB , officials of Local authority will be
nominated in SPCB. .

It can have maximum of 17 members , which constitute- a chairman, five officials from State
Government, five officials from local authority, maximum of three representation from various
sectors (non-official) like agriculture fishing, industry, trade etc. , maximum two representative

5
Section 18(2), in case of emergency where SPCB is not able to address or SPCB is failing to perform its function ,
the state court can pass order to CPCB, to take the function of the SPCB and the cost inccured on performing such
function by CPCB will paid by SPCB.
from companies which are wholly owned , controlled or managed by the Central Government,
and one full time member secretary. All the members are nominated by Central Government.

All the members of CBCB and SPCB are appointed for years except member secretary, and the
officials representing Central and State Government, their term comes to an end as soon as they
cease to hold their office in Central and State Government.

Functions of SPCB are: It acts as an advisory board to State Board. Its secific functions are:

i. Conducting training program to employees, researcher and experts.

ii. Organize awareness programs through mass media,
iii. SPCB has to inspect sewage of trade effluents , plants for the treatment of sewage and
trade effluents, grant of any consent as required by this act
iv. Lay down, modify effluents standards and check quality of receiving water6 etc.
v. To evolve economical and reliable method for the treatment of sewage and trade
effluents, keeping in mind the local geographical features of each streams.
vi. Come up with the efficient method of disposal of sewage and trade effluents on land, as it
is harmful for underground water, soil if the waste negligently dumped into the ground.
So SPCB needs to make such method which will not negatively impact the underground
water, soil and plants of that area.
vii. Make, vary or revoke any orders for prevention, control or abatement of water pollution;
requiring any person to build new systems or modify existing systems to prevent, control
or abate water pollution
viii. Power to establish or recognize Laboratories for fulfilling the functions under this section
like analysis of water samples and all.
ix. Under section 18(1), SPCB is bound to perform functions given by CPCB and state
Government in writing.7

Under section 13, there can be constitution of joint board, by entering into agreement- either
between two or more States, or between Central Government and one or more Governments of
States contiguous to such Union territory or Union territories.

Prevention and control of Water Pollution

Under Section 19 SPCB has the power to restrict the application of this Act, so if SPCB is of
opinion that there is any river where no more effluents can be dumped. So board will declare it
as Water Pollution Control area. So by declaring such area as control area, industry will be
outside the reach of any industry to dump any effluents or sewage there. In The case of A.P.
Pollution Control Board (2) V Prof. M.V. Nayudu, 8court held that if SPCB laid down the
6
Receiving waters are the bodies which are receiving the waste/ effluents from any industry . so apart from setting
effluent standards /, they have to check receiving water by taking its samples.
7
A.P. Pollution Control Board (2) V Prof. M.V. Nayudu, (2001) 2 SCC 62
8
(2001) 2 SCC 62
restriction, prohibiting industries within 10 km, state cannot grant exemption to any one industry.
This policy of the SPCB will be arbitrary, without statutory backing and violation of Article 21
of the Constitution of India.

Under section 20, Power conferred on SPCB to obtain information regarding any water body
which passes from any human dwelling or from any industry. And even those industries won’t
strictly come under that act, but then also SPCB can obtain information. After SPCB obtain
information and done with their inspection if SPCB is of opinion that the water bodies needs an
improvement for and any changes to be done then SPCB can give any direction to in-charge or
occupier of the industry to make those changes and improvements

Under Section 21 , SPCB have the power to take samples from any water bodies to check that
what amount of lead and toxic substance are present in that water bodies. They can take samples
of any effluent or sewage to check if it has any material which will be harmful to Marine life.
Once the sample has been taken and SPCB is of opinion that this industry is doing harm by
discharging harmful waste. Then SPCB can produce this evidence in the judiciary but if SPCB
has not there to the procedure mention under this section then the evidence produced by the
board will not be admissible in the court. Procedure like prior notice to the occupier or person in
charge of that industry that board will be taking samples and further more expert should be
present while collecting samples. And whatever sample is been collected it should be labeled
properly.

SPCB also has the power to enter any industry and perform any function entrusted upon them.
Board has the power of search and seizure and the rule for search and seizure will be governed
by CRPC.

There is a substantive provision under section 21, that no one can pollute water i.e., Nobody has
right to discharge any obnoxious or toxic substance in water body, or any other material which
harmful to water bodies and No company, Government, industry has a right to dump and harm
the water. But there are exemptions to it:

i. If someone is constructing, improving dam, bridge, building, dock or drain in or across

the bed or bank of any stream and has legal tender to construct. So then it won’t consider
as polluting the water.
ii. If dumping any material which is accepted by the Government, that it won’t pollute the
water, then it is not water pollution.
iii. River is running its course, and putting sand, or any other natural particles , which will be
collected in the bank of the stream , is not water pollution.

In the case of Agrawal Textiles Industries V State of Rajasthan,9 Agrawal textile obtained the
order form the CJM that they cannot further dump the effluents from their manufacturing unit.
9
SBC Writ Petition No. 1375 of 1980, order dated 2-3-1981
Therefore court declared that area as a water pollution control area. So three writ petition were
filed in Rajasthan High Court against the order of CJM, challenging the constitutional validity of
section 19 and 24 of this Act. Their contention was these sections are arbitrary and violating
Article 14, as the power conferred upon SPCB is arbitrary to declare an area as water pollution
control area. The High court held that the sections are intra vires because, firstly the board will
declare an area as water pollution control area after consulting with experts and secondly the
spirit of Preamble of this Act is such that , it guides the board to declare an area as controlled
area. So section 19 and 24 is constitutional.

Under section 25, there has to be taken permission from the board before establishing any new
outlet or discharge of effluents. Without the consent of the board- no one can establish or alter
any outlets and make any new discharge of sewage (like if someone expand their business, and
there may be any new discharge from their unit, so for this purpose also there has to be
permission from the board).

And if the application for the permission is made, the board within the 4 months of the
application has the power to grant or refuse the consent or it can even provide conditional
consent. And if within 4 months, board don not grant or refuse consent it will be considered as
Deemed Consent. Deemed Consent is not equivalent to General consent as it has not been
obtained after following due process but because of the Lapse of Board. And it becomes very
difficult wile litigating because if case arises that there is discharge of harmful substance from
the industry which gained deemed consent. So the industry can impose blame on board itself that
board was negligent to follow the proper procedure within 4 month of application, to check if
there is anything wrong. So this Deemed Consent stands at very shaky ground and will be
decided by court.

In the case of Vijayanagar Educational Trust v Karnataka SPCB,10 in this case the trust applied
an application for the consent of Karnataka SPCB on 27 November 1999 and the board just
wrote a letter on 7 February 2000 to conduct an investigation. Later, on 28 May 2000 the court
refused the consent. Then the trust, made an appeal to National Appellate Authority to take it as
a deemed consent, and the appeal was rejected. Further, trust made an appeal to High Court, and
the court held that there was a fault in the procedure by the SPCB; it was a lapse of 4 month to
refuse the consent. As the application was filed in 27 November and refusal was done on 28 May
which is more than 4 months. So court held that board act contrary to the act and court treated it
as deemed consent.

And any industry established before the commencement of the Act, has to take permission within
the prescribed time limit after the commencement of Act. 11 In he case of A.P. Pollution Control

10
AIR 2002 KAR 123
11
Section 26 of the Water (Prevention and Control of Pollution) Act, 1974
Board V Prof. M.V. Nayudu,12court held that taking consent is important before discharging any
effluents in the streams.

The consent granted under section 25 is not absolute; consent can be withdrawn by SPCB under
section 27. There will be revision of consent from time to time by the board, and if it is of
opinion that the now this industry is discharging more the prescribed limit or discharging
harmful effluents which it was not discharging it before. In this scenario board can alter or
withdraw the consent. Any person aggrieved by the decision of the board under section 25, 26,
27, can appeal before the National Green Tribunal (NGT). 13 But NGT constituted on 2016,
before that the appeal use to be made before the National Environment Authority, as made in the
case of Vijayanagar Educational Trust v Karnataka SPCB14. State Government can suo-moto
take any order given by SPCB under section 25, 26, 27, to check its legality and propriety of its
order. But State Government cannot take any orders, which is pending before Appellate
Authority.

If the Board is of Opinion that any stream can be polluted because of the reason of disposable or
likely disposable of any substance by any person or industry, board can make an application to
court, not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class,
to make such order which it deems fit to abstain such person from doing so. So court can ask the
person or industry to not do any act to pollute the stream, and in case he has already done, can
order to remove that matter from stream. Court can make order to SPCB to remove the matter, in
case the person has to follow the order of court to remove the order. And the cost of such
removal incurred by SPCB will be recoverable by the person who caused such disposal.15

Under section 33-A,16 Board has the power that, in pursuance to exercise its functions under this
Act, can issue any directions in writing to any person, officer or authority, and they shall be
bound to comply with such directions. And such direction can be for the closure, prohibition or
regulation of any industry, operation or process; or for the stoppage or regulation of supply of
electricity, water or any other service. In the case of Bhavani River Sakhti sugar Ltd, re,17 where
the Tamil Nadu SPCB issued direction to an industry under section 33-A for the disposal of
effluents in the streams after a proper treatment. The industry did not complied with the
direction, thus SPCB ordered for the closure of the industry. Industry appealed to the court.
Supreme Court upheld the decision of the SPCB.

Penalty Provisions

12
(2001) 2 SCC 62
13
Section 28 of the Water (Prevention and Control of Pollution) Act, 1974
14
AIR 2002 KAR 123
15
Section 33 of the Water (Prevention and Control of Pollution) Act, 1974
16
Ins. by Act 53 of 1988, (w.e.f. 29-9-1988)
17
(1998) 2 SCC 601; also see, M.C. Mehta v Kamal Nath, (2000) 6 SCC 213
If there is any contravention in the compliance of section 20 or any non compliance of the order
issued under section 32 or direction issued under section 33 or 33A, the person will be penalised
under section 41 of this Act. In the case of Delhi Bottling Co. (P) Ltd V. Central Board for
Prevention & Control of Water Pollution,18 Board has launched prosecution under section 41
against the industry for non- erection of the treatment plant.

In the case of M.C Mehta v Union of India,19 the Supreme Court observed that pollution is a tort
committed against a nature. So he can pay compensation to restore the environment and even to
the people who have suffered damage because of those damages. And the power of SC is not
restricted under Article 32 in case of PIL and a writ petition. It can award damages as well as
exemplary damages to the person who has suffered the loss. So Supreme Court held in this case
that “pollution fine” and “exemplary damages” can also be imposed on the erring in industry, if
the entire procedure is followed in the case and an opportunity of being heard is given to the
offender

In the case of Tirupur Dyeing Factory Owners Assn. V Noyyal River Ayacutdars,20 the untreated
effluents of the textile industry had caused a great dame to the environment and widespread
damage to the agriculture and agriculture land of that area, so Supreme Court upheld the order of
the Tamil Nadu High Court, and approved the fine levied on the owner to clean the river bed,
and asked them to pay Rs. 24, 79, 98, 548.

There is a penalty for non compliance of section 24, 25, 26 under section 43, 44. And if then also
the non compliance continue, there is further penalty for the noncompliance of section 24, 25, 26
under section 45of this act.

There is residuary penalty provision under section 45-A, if any person or industry has done any
act in the contravention of this act and no penalty has been provided for the same in this act.
Those industry and person will be penalised under this section, with imprisonment which may
extend to three months or with fine which may extend to ten thousand rupees or with both, and in
case of continuing contravention or failure with an additional fine which may extend to five
thousand rupees for every day during which such contravention or failure continues after
conviction.

If the offence is committed by the company, so every person who at the time of commission of
offence was in-charge or responsible for the conduct of the business, will be liable for the
offence. But if any person proves that the particular offence was out of his knowledge or that he
exercised all due diligence to prevent the commission of such offence, that person will not be
held liable.

18
AIR 1998 Del 152
19
(2000) 6 SCC 21.
20
(2009) 9 SCC 737
In the case of U.P. Pollution Control Board V. Modi Distellery,21 in this case the Supreme Court
made it clear that, the Chairman, Vice Chairman, Managing Directors and members of Board of
Directors of the Modi Distellery can be held liable for the offence of discharging toxic and
obnoxious trade effluents into the Kali River. As these people were in-charge and responsible for
the conduct of the business of the company.

In the case where the offence is committed by the Department of government the head of the
department will be held liable unless he proves that the particular offence was out of his
knowledge or that he exercised all due diligence to prevent the commission of such offence

Conclusion
According to this Act, industries have to treat their waste before discharging into the receiving
water, so that it will not be hazardous to the water bodies. The effluents which are discharged by
TPP are thermal discharge, sanitary effluents and wastewater effluents which includes ash
handling waste waters, wet FGD system discharge, material storage runoff, etc. These effluents
must be treated before discharging to fresh surface water, soil, ground water.

Energy sector also significantly rely on fresh water for cooling purpose. The sector's relative
water consumption is projected to grow from 1.4% to 9% between 2025 and 2050 (from 15
billion m³ to 130 billion m³ annually). 22 Therefore, these water bodies and power sector are
interdependent, where power sector has to treat their wastage in order to curb the pollution from
the water bodies, which will in turn impact their consumption of fresh water for their activities.

Module 3- Environmental Laws in India

Chapter- II
The Environment Protection Act, 1986
Introduction
The Environment Protection Act, 198623 was enacted to provide umbrella legislation to protect
environment against hazardous substance. The act came into force on 19th November, 1986.
India had numerous legislations like Air Act, 1981, Water Act,1972, but the need to enact
this umbrella legislation was felt because of the push from International and National community
that the existing legislation do not cover every aspect of Environment. National community
21
(1987) 3 SCC 684
22
Central Water Commission (CWC) (2015), Water and related statistics, April 2015, retrieved from
www.cwc.gov.in/main/ downloads/Water%20&%20Related%20Statistics%202015.pdf
23
Herein after referred as EPA.
showed major concern after the incident of Bhopal Gas Tragedy in 1984. And the other reason
was to implement the provision under The Stockholm Declaration, 1972.24

The main objectives of the act are to protect the environment against various harmful pollutants
and to empower Central Government to further assign authority to comply with the laws of the
act. This act comprises of 26 sections divided into four chapters. The act exclusively talks about
definition of environment, environmental pollutant, environmental pollution, handling,
hazardous substance, occupier, etc. In the case of Sate of H.P. V Umed Ram Sharma, 25 held that
Article 21 of the Constitution of India also include better standards of life, hygienic condition in
work place and leisure.

First time in the world the definition of Environment was define under EPA. Section 2(a) defines
environment – It include water, air and land and the inter-relationship which exist among and
between water air and land and human beings, other living creatures plants, microorganism and
property. This define is very broad so that judicial intervention can easily be happen. But there
are contradicting views regarding it. One opinion is that this definition does not include physical
elements like technological developments which is happening in today’s era like noise, effect of
traffic, The other view is that when the definition itself stating the inter-relationship among
water, air, land and human beings and other creatures, so these physical elements are very much
part and parcel of environment according to this definition.

Power of Central Government

Under Section 3 the CG has all the power to take the measures to protect the environment.
Specific powers are:

i. Co-ordinate of activities of various state government authorities and officials under this
act or the rules under this act or under any law which has been in force for a time being
and related to the object of this.
ii. Planning and execution of a nationwide program for the prevention, control and
abatement of environmental pollution.
iii. Laying down standards for the quality of environment
iv. Laying down standards for emission or discharge
v. Procedures and safeguards for handling hazardous substances
vi. Lay down procedures and safeguards for the prevention of accidents which may cause
environmental pollution and take remedial measures to prevent such incidents.
vii. Establishment of laboratories of designating any laboratory specifically for this act for
testing samples.
viii. Collection and circulation of the information which are related to the matters concerning
the prevention control and abatement of environmental pollution.
24
First International Conference on Human Environment also known as Magna Carta on Human Environment.
25
(1986) 2 SCC 68
 ix. Central government has the power to establish authorities for specific purpose like CG
ordered by SC in MC Mehta V. Union of India 26 case to establish special authorities
which specifically dealing in traffic rules and vehicle pollution.
x. Inspect any premises, equipment, machinery manufacturing and other processes,
material, and substances give direction to authorities, officers or persons of
environmental pollutions.

Under Section 4, the central government is in power to appoint the officers with such designation
as it thinks which fit for the act purpose and it shoulf not be prejudice to Section 3 of the act.
Section 5 of this act empowers the central government in pursuance to its power and
performance it can issue directions in writing to any persons offices authorities and they should
comply with all the direction given. In the case of Taz Trapezium, 27 because of the pollution
from the industry the Taz Mahal was turning into yellowish colour, so on this bais 292 industries
were asked to either shut down or shifty their industry to some other place.

Section 6 is complementary to Section 3, section 6 empowers central government to make rules

in respect of the matters relating to the power mentioned in section 3.

Environment Impact Assessment28

There is a notification under EPA under section 3(1) and 3(2)(v) of this act, which mandate the
requirement for environment impact assessment. EIA is done to check what will be the impact of
developmental project in the environment. So this is impact depends on project to project like if
any project involved human daily needs for here that impact will look over.

The term assessment is taken from the National Environment Policy Act, 1969 (NEPA). 29 We
also have an international association for impact assessment which states if a is a process of
identifying predicting evaluating and mitigating the biophysical social and other effects of
developmental projects. The outcome of the Brundtland Report, 30 our common future is also
talking about EAI and use, importance of it in the current scenario.

Unite Nation Economic Program( UNEP) came with Epsoo convention which talks about trans-
boundary obligation of EIA, that it is a duty of one state that it does not impact the environment
of other state by its own developmental projects. Trans-boundary obligation has been also
mention in Stockholm declaration and in other instruments in some or other ways. Espoo
convention has also talk about the process of EIA.

There are 3 Models for EIA-

26
1991 SCR(1) 866
27
M.C. Mehta v. Union of India, (1997) 2 SCC 353
28
Herein after, referred as EIA.
29
Domestic Legislation in US.
30
Also known as World Commission on Environment & Development, 1987
1. Mandatory model, it means it is necessary for environment impact assessment for all types of
project. As the assessment is expensive and time-consuming there can be delay so there will be
no economic development so we have to strike a balance between economic development and
environmental preservation.

2. Discretionary model -so there is a discretion authority that they have to conduct impact
assessment or not. There can be both disadvantage as well as advantage. Advantage can be that
there will be no delay, no backlash on the project and there will be no cost to be incurred for the
assessment. Further, there can be disadvantage that there can be a favourite from the authority
that they will clearance to the people, whom they know for no assessment, therefore leading to
no transparency and poor governance.

3. Cost-Benefit Model- the EIA will be based on the benefit we are incurring from the
assessment, if benefit is too much in comparison of the cost of the project then they will give
clearance and if cost is too much in comparison to the benefit from project they will not give
clearance. In India cost benefit is used in a large extent like if we are doing deforestation, so the
cost of cutting the plant is less in comparison to the gains we are getting from a lot of
employment opportunity of the people so they may give clearance for the deforestation.

There was EIA notification 1994 , which got replaced by EIA notification 2006 , and then we
have draft of 2020 which is still pending. In the case of G. Sundarranjan v. Union of India, 31
court observed that “environment scientific benefit” have to be balanced with that of minor
balanced with that of “minor radiological detriments”. The reports of the expert bodies must also
be taken and considered before giving or according clearance for nuclear plants. While issuing
the clearance to Nuclear plant of Kundankulam for expansion , the Ministry of Environment and
& Forest laid down various conditions.

Draft Notification of 2006

EIA Notification 2006 has come to fulfil the requirements of NEP, 2006. in this notification, the
clearance is required the project- which are new projects under the schedule or even you are
introducing any new project in your industry which is not schedule for that also approval is
required (this was not in 1994 notification) , any expansion/ modernisation under the project
under the schedule or change in product. The regulatory authorities under 2006 notification are
Central Authority and State-level Environmental Impact Assessment Authority (SEIAA).

Projects are divided into 2 categories- A and category B. Category A requires approval of central
government and Category B required approval of SEIAA. And these categories depend on the
level of impact they have on human environment. Some activities are common in category A and
categories B like mining is common, so the common activities in both the category depends upon
the capacity that from whom it will take approval from. Like if the mining is of more than 50

31
(2013) 6 SCC 620
hectare it will take a approval from central government and if it is less than 50 hectares it has to
take approval from SEIAA.

Process for conducting EIA- it involves 4 steps:-

1. Screening - This is only for category B so it will depend on the nature and location that it
needs environment impact assessment or not and if they think that there is no adverse
effect of the developmental project and it do not need any assessment then it will fall in
the category of B2. This B2 category is the category which needs no EIA.

And this screening is done by the authority State Level Expert Advisory Committee
(SLEAC). This committee will see whether the project needs any impact assessment or
not so there will be e application of mines and expert and they will come into to
conclusion that there is a need of EIA or not. So after this the B2 category is out of the
process.

2. Scoping - There are two expert agency EAC ( for category A) and SLEAC ( for category
B). Basing on the proposal and documents submitted in the above agency by the
proponent, these agency will come with the Term of Reference ( TOR) which will help
proponent in the preparation of EIA. TOR are the parameters on which the proponent has
to formulate an EIA report by taking help from the consultant agencies. So there are
specific body/ consultant which are required to certify the EIA of proponent. And these
Agencies should be certified by Quality Council of India (QCI).

These TOR is given to the proponents so that he himself does not make report on his
own, or on any point which may not be relevant. The advisory Committee has to come
with TOR within 60 days of receiving of the application from the proponent but if
advisory Committee won't come within 60 days then the TOR propose by proponent will
be deemed to be final and that only has to be accepted by the authority. These report
based on TOR will be submitted to EAC/ SLEAC.

3. Public Consultancy- Public Hearing is very important , this public is the people who are
living in and around area where the project has to performed. This public hearing is to be
conducted by SPCB and it will look after that it has been conducted by the authorities or
not and will see notice has been sent to all the holders or not. So there has to be 30 days
in notice before conducting a public hearing to the people who are related to it and there
has to be notice in newspaper of local language. So that people can come and raise their
voice.

There are 2 types of Public hearing- First it is open sort of consultancy where authorities
proponent and locals will be there and discuss the matter and public can make
 presentation and in another type of public hearing it includes stakeholders like local
newspaper people and these stakeholders can send written responses to the authority.

4. Final Appraisal - After the submission of TOR along with EIA report and Environment
Management (EMP) , this plan includes how everything will be implemented and also to
submit the result of public hearing. All the documents submitted will be detailed
scrutinized by the EAC/ SLEAC ,they will see what will be the effect on flora and
fauna ,species ecology and how the proponent will be managing the project and how the
proponent is dealing with public concerns. So all this will be scrutinized by this EAC/
SLEAC.

Then these authorities will further recommend to the regulatory authorities i.e., central
government or SEIAA. These recommendation will include that whether they are
approving or conditional approving or refusing the clearance. The process of scrutinizing
the documents by the EAC/ SLEAC has to be completed within 60 days and send the
recommendation to the regulatory authority. And the regulatory authorities within 45
days of receiving the recommendation, has to announce its decision to the proponent. If
no decision has been given to proponent within the prescribed time limit then it will be
deemed that whatever EMP and EIA report is submitted is accepted unconditionally and
consent is given.

The validity of the environment clearance will be different from project to project- For river
valley it will be 10 years, for mining projects it can be maximum up to 30 years and for other
projects it will be 5 years. And after this time period they have to again take clearance.

There are Few mechanism through which government are trying to keep check on the proponents
activity: First every proponent has to give publication in newspaper which is national and
regional that they have acquired environment clearance and secondly after every half year
proponent has to submit a report to the authorities that what they are doing to comply with the
requirement made by the authorities.

Environment clearance is transferable due to change in authority take place but this transfer
should be done only within the time period granted. As environment clearance is an
administrative executive action so a judicial review can only happen in the grounds of procedural
lapses, illegality or any irrationality. And there can be no judicial review on the basis of scientific
expert mind or on the basis of technical knowledge.

In the case of Orissa Mining Corporation Ltd V Ministry of Environment and & Forest, 32 the SC
made it clear that there can be stage wise grant of clearance to make sure that all the safeguards
of environment has been complied, and the clearance can be rejected at the final stage if the
conditions of preliminary stages are to be adhered.
32
(2013) 6 SCC 476
Draft Notification of 2020

The major difference in the 2016 and 2020 notification is because of the expo facto clearance,
which is dangerous for environment. According to 2006 notification proponent cannot setup
project before giving clearance but according to 2020 port we can setup project before getting
the clearance and then we can gain clearance this step has been taken to curb the delay which is
happening because of the clearance process. But the disadvantage of this clearance that if there
activity is detrimental to environment, and before gaining clearance they have set up their
project. So by the time they get clearance the harm would have been already done the
environment.

Under 2020 notification they are also giving the list of projects which do not required any
environment impact assessment but in case of 2006 notification it was authorities which decide
by applying expert minds that this project will fall into B2 category or not.

Prevent, Control and Abatement

There are different provisions in the Act which lay down the measures to protect control and
abatement of environmental pollution.

To prevent the environment pollution firstly there is a provision that no industry operations for a
process shall discharge or emit any environment pollution i.e., any hazardous substance in excess
of the prescribed standards.33 And no person has to handle any hazardous substance unless they
have following a prescribed procedure to handle those hazardous substances.34

In case there is any discharge of any environment pollutant in excess of the prescribed limit due
to an accident or unforeseen act then the person responsible for the same has to make an efforts
to mitigate the damage caused by the environmental pollutants and also to inform the authorities
of such incident. And in case any instruction received from the agencies, to fulfil that instruction
all the person associated has to provide assistance to mitigate the risk.35

The measures taken to control the environment pollution are- power of authorities empowered
by central government, has the right to enter and inspect any equipment, industrial plan, record
registered document, any material the possession of the person who apprehended to commit
offence under this act.

Authorities have power to take samples and to test whether the samples are including any
hazardous substance or not. But this process of collecting should be done by following a
procedure laid down under this act that is before collecting the sample that should be a notice
given to the industries and while collecting the samples the presence of experts should be there

33
Section 7 of EPA
34
Section 8 of EPA
35
Section 9 of EPA
and the samples should be labelled properly while collecting. If the process has not been
followed then the evidence won't be admissible in the court.

Under section 12 mandates establishment of environmental laboratory by the central government

to carry out the function entrusted to an environmental laboratory under this act. The central
government may laid down the functions of laboratory and also the process that how the samples
of air, water, soil is to be submitted and reported to the laboratory. Further government may also
appoint an analyst who will analyse the samples of water, air, soil and other substances which
has been collected by the authorities and the report of the government analyst may be used as an
evidence under this act.

The measures for the abatement of environment pollution are the penalty for contravention of
provisions under Section 15 any person who never fails to comply with OR contravenes with the
provisions of this act or any order rule or directions given by the authorities will be punishable
with the term of imprisonment extend up to five years or a fine of rupees 1 lakh for both.

Section 19 the court take any cognizance accept any complaint made- by a person who has been
given 60 days notice to the central government who has made a complaint of an alleged offence
or by central government or authority on the behalf of Central government.
 Module 3- Environmental Laws in India

Chapter- III
The Wildlife (Protection) Act, 1972
Introduction
India is very rich in flora, fauna, and species, but with the increase in the building, there has been
seen a decrease in the forest land which is greatly effecting wildlife and disturbing our ecological
balance. Protection of Wildlife is not only a duty of state as well as fundamental duty of a
citizen. Article 48-A36 directs the state to protect and improve the environment and safeguard
wildlife and forests and under Article 51-A imposes a fundamental duties upon a person of India
to protect and improve the natural environment including forests, lakes, rivers and wildlife and to
have compassion for living creatures.

The Wildlife (Protection) Act,37 1972 passed by the parliament on August 21, 1972 and came
into force on 9 September 1972. The main aim of the act is to protect wildlife, birds and plants
and other connected matters for ensuring ecological balance and environment security. WLPA
comprises of 66 sections divided in seven chapters and six schedules. Article 21 , right to life not
only extend to people but also wildlife and SC also ordered authorities that they should designate
or reserve a particular forest area for preservation of wildlife.38

Wildlife is defined under 2(37) of WLPA, as any animals, aquatic, or land vegetation which is a
part of any habitat. It means that every plant and vegetation is considered as wildlife. Under 2()
of the WLPA, Animal is defined as amphibians, birds, mammals, reptiles, their young ones, their
eggs. This mean even the animal which is yet to take birth i.e., is also been covered under
wildlife. This act contains six schedules. Schedule 1and 2 provides an absolute protection to the
wild animals and if there is any violation for the provision, the penalty for the same is very high.
Under Schedule 3 and 4 animals like wild pig, chital, hyenas, gorals are protected and if there is
any violation for the provision, the penalty for the same is low. Under Schedule 5 there is a lost
of animals which can be hunted and schedule 6 states the list of specified endemic plants which
are prohibited for cultivation and planting.

Authorities under the Act

1. There will be a Director of Wildlife Preservation, and other officers Under section 3 of the WLPA,
who will be appointed by central government. And it will be subject to the general or special
directions given by Central Government from time to time. And the officers appointed under
this section will assist the director of wildlife preservation.
36
This article was added to the Constitution of India by the 42nd amendment 1976.
37
Herein after, we will refer it as WLPA.
38
World Wide Fund India V Union of India (Asiatic Wild Lion Case), (2011) 14 SCC 816
 2. There will be Chief Wildlife Warden and Wildlife Warden, other Honorary Wildlife Warden and
other officers and employees who will be appointed by State Government. The Wildlife Warden,
Honorary Wildlife Warden and other officers and employees will be subordinate to chief wildlife
warden. The Chief Wildlife Warden will subject to the general or special directions given by
State Government from time to time.

3. Under section 5A there will be constitution of National Board for Wild Life (NBW). The board
constitutes- Prime Minister as the Chairperson of the board, Minister of Forest and Wildlife as a
Vice-Chairperson, other representative from both House of parliament, NGO, environmentalist,
Chief of Army Staff and other members. Director of Wildlife Protection will be member
secretariat.

Functions of NBW: NBW is entrusted with the functions:

i. To take measures to promote the consecration and development of forest and wildlife.
ii. Framing policies and advising the state and Central Government to promote the wildlife
conservation.
iii. To make a recommendation to setup cost and management of national parks
sanctuaries and other protected areas.
iv. MBA has to also review progess of the wildlife conservation from time to time and
taking measures to improve the Lacunas.
v. Conduct and impact assessment of various project and activities on wildlife.
vi. Has to prepare a report at least once in two years on the wildlife in the country and
publish it.

NBW may constitute a Standing Committee which consists of the Vice-Chairperson, the member
secretary and not more than 10 members to be nominated by the vice-chairman person among
the members of the NBW.

Hunting of Wild Animals

Wild animals is defined under section 2(36) of WLPA, as an animal specified in schedule I to IV
and found wild in nature. The main reason to bring this act into force is to prohibit the hunting of
wildlife animal. Hunting of wild animal is prohibited under section 9 except for the condition
laid down in section 11 and section 12. And hunting under section 9 will not only consider when
you kill the animal but hunting also includes injuring or taking some bodypart apart from
animals.

Under section 11 each state has to take written permission from Chief Wildlife Warden. And if
Chief Wildlife Warden is satisfied that any animal under schedule I has become dangerous to
human life or has been disabled or deceased beyond recovery show only on the two conditions
the chief wildlife Warden can give written permission for reason order to hunt that animal. If
chief wildlife Warden is satisfied that any animal under schedule II, III, IV has become
dangerous to human life or to the property or has become this able or deceased beyond recovery,
then the animal can be hunted by the reasoned order of the chief wildlife warden. And in this
section the permission is taken by the Forest authority.

Under section 12 Chief Wildlife Warden may permit any person with the prescribed fee to hurt
any wild animal for the purpose of education, scientific research, scientific management shifting
of animals to another habitat, population control for restoring balance in ecology, collection of
specimen, collection of snake venom for preparing life saving drugs. But no permission shall be
granted for wild animal in schedule I unless there is previous permission from Central
Government and for other wild animal there has to previous permission from state Government.

Protection of Specified Plants

No person can indulge in the activity of picking, uprooting, damaging, destroying, acquiring or
collecting any specified plant from any forest land and area specified by central government and
no person can poses, sell ,offer for sale or transfer by way of gift or transport any specified plant
whether alive or dead or part or derivative of it.

But under section 17-B the Chief Wildlife Warden may, with the previous permission of State
Government, permit any person to indulge in the activity of picking, uprooting, acquiring or
collecting from a forest land or the area is specified under the section 17 clause a for the purpose
of education scientific research collection Preservation and display in herbarium of any scientific
institution propagation by a person or institution approved by Central Government.

In the case of Godavaraman V. Union of India, supreme court said that red sandalwood is also
included in the list of specified plants and prohibits trade of red sandalwood because it is
endangered species and has unique vegetation. State is trying to protect red sandalwood.

No person can cultivate a specified plant or commence or carry on business/ occupation as a

dealer in a specified plant or part or derivate of it, without the licence granted by chief wildlife
Warden or with the permission of any officer authorised by State Government. Under section 17-
E Any person, who is cultivating or dealing in a specified plant or part or derivative of it, on the
day of commencement of act, shall declare his stocks of such plants in part or derivative thereof
to the chief wildlife warden within 30 days from the date of commencement of the WLPA.

Protected Areas
Sanctuary
State government can notify any area under section 18, as a sanctuary, if it is an opinion that an
area is of adequate ecological, faunal, floral, geomorphological, natural or zoological
significance, for the purpose of protecting propagating for developing Wild life or its
environment accept an area other than reserve forest(c because reserve forests are already
protected under forest act). State government shall also appoint a collector within 90 days from
the commencement of this act or within 30 days from dat of the notification under Section 18, to
enquire into and determine the existence nature and extent of right of any person who has
claimed over the land which has been notified as a sanctuary under Section 18.

After an area is declared as in sanctuary there will be a prohibition for certain activity in that area
so there rights of many people Will be affected mostly forest dwellers and individual who are
residing and owning property there.

so those people has a right to approach and put their claim before the collector appointed by
State Government, he is quasi judicial officer and Collector has a right to determine claims arise
out of the declaration of sanctuary.

After the claims are decided and compromise are worked out by collector, then State
Government can finally notified that particular area as a sanctuary (aslo providing the map of
that area) and once it is declared as sanctuary its boundary cannot be alter. If there has to be any
alteration or addition of new area you have to follow the whole procedure under Section 18 and
has to notify and new claim will be made by the people living there and then you can consider it
to be sanctuary.

According to section 28 at the Chief Wildlife Warden has the right to grant permission to any
person to enter or reside in a sanctuary for the purpose of photography, scientific research,
tourism, investigation or study of wildlife, or transaction of lawful business with any purpose
residing in the sanctuary.

Activities which are prohibited in sanctuary:

i. No person is allowed to enter in century except:

a. A public servant on duty.
b. a person who has been permitted by chief wildlife Warden or
c. any authorised person or a person who has a right over immovable property within the
limits of the sanctuary or
d. a person passing through the sanctuary along a public highway and the dependence of
the person referred in the clause a, b or c shall reside in Sanctuary.

ii. Under Section 30 there is a complete prohibition on settings fire or leave any fire burning in a
sanctuary which can endanger a sanctuary.

iii. Unless there is a prior permission from the chief wildlife Warden nobody is allowed to enter a
sanctuary with any weapons. This is done to avoid any hunting of animals

iv. No person is allowed to enter a sanctuary with any chemicals, explosive or any other substance
which may cause injury or endangered to any wildlife in sanctuary.
 v. No person is allowed to destroy exploit a removed any wildlife including forest produce from a
century or destroy or damage or divert the habitat of any wild animal accept by the permission
of chief wildlife warden. And no such permission will be granted unless the state government is
of opinion that such removal or exploitation from the century or the change in the flow of water
into outside the sanctuary is necessary for the improvement of better management of wildlife.
And the forest produce which has been taken from sanctuary should not be used for commercial
purpose.

National Park
Section 35 of the WLPA deals with the declaration of a National park. The state government can
declare an area as a National Park by official notification if it finds that such an area is by reason
of its ecological, faunal, floral, zoological association deems fit for the purpose of establishing a
national park and developing wildlife therein or its environment. The notification should declare
the limits of an area which has to be declared as National Park. When an area is to be declared as
National Park shall apply for the investigation and determination of claims with respect to the
area concerned. When the period for claims has elapsed and if any claim has arisen in relation to
the land in question have been disposed of by the State Government, then all rights over the area
which has to be declared as national park will be vested in the State Government.

The alteration of the boundaries of a National Park cannot be made unless there is a resolution
passed by the state legislature. No person should destroy or damage or exploit or remove any
species of wildlife in the National Park except he or she has the permission granted by the Chief
Wildlife Warden. Chief Wildlife Wardens can grant such permits to the concerned person only
when the State Government is satisfied that such destruction, damage or exploitation is necessary
for improvement, maintenance of the wildlife in the National Park. The livestock grazing is not
allowed within the limited area of the National Park. There is an exception to this rule, only the
person who has the permission to enter such a National Park and he or she is using such an
animal as a vehicle, then the permission is granted for the livestock grazing.

Trade Or Commerce In Wild Animals, Animal Articles And Trophies

Section 39 states all the wild animals are Government Property. It states-wild animals other than
vermin, also wild animals which are found dead, or killed by mistake, Trophy or uncured trophy
or other animal article or meat derived from the wild animal, ivory imported to India or any
article made by such ivory, any vessel, weapon, trap, tool used to hunt the wild animal in the Zoo
shall be the property of the State Government and in case of a National Park or Sanctuary then
such will be the property of the Central Government.

Any person who possesses any Government property, within the time of 48 hours should return it
to the nearest police station or authorised officer. No person shall without the prior permission of
the Chief Wildlife Warden acquire or keep anything in his possession or control, transfer such
property by way of gift or sale, destroy or damage such government property.

Section 43 States about the regulations in the trade and transfer of the animals. It states A person
who doesn’t have the certificate of ownership, shall not in any case sell or offer to sell by the
way of sale or by the way of gift any wild animal which are specified in Schedule 1, Schedule 2,
they shall not make any article containing part or whole of any animal part or body, should not
be involved in the process of taxidermy except when they have the permission from the Chief
Wildlife Warden. If any person is shifting from one state to another and acquires by transfer any
animal article, trophy or any uncured trophy from the state in which he used to reside earlier.
Such transfer should be within 30 days reported to the Chief Wildlife Warden or any authorised
officer whose jurisdiction the transfer has effected. No person who does not possess the
ownership certificate should involve in any act of transfer of any animal or animal article or any
uncured trophy.

While issuing the certificate the Chief Wildlife Warden should do a proper enquiry, shall
investigate to whom the earlier ownership certificate belongs to and then issue a fresh certificate
in the name of the new owner. Also he or she may affix the identification mark on the body of
the animal or uncured trophy or animal article.

Prevention and detention of offences

Section 50 deals with the power of entry, search, arrest and detention. Notwithstanding with
anything contained under any other law in force in the country if any authorized officer or the
Director or any other person authorized by him or any other person authorized by the Chief
Wildlife Warden or by Chief Wildlife Warden himself or any forest officer or any police officer
who is not below the rank of sub-inspector has certain reasonable grounds that any person has
committed any offence against this Act-

1. Can ask such person to produce the required documents or any license, permit for the
inspection of the captive animal, plant or part or derivative of any animal under his
control, trophy, uncured trophy, animal article, meat, any specified plant
2. Can stop any vehicle or vessel for the required search or inquiry of any land, vehicle,
premises, any baggage or any other things of such kind in his possession
3. Can seize any such animal article, vehicle, vessel, weapon, captive animal, meat, trophy,
wild animal, uncured trophy, plant or any part of it unless such authorized person is
satisfied that person who has committed crime against this Act will appear and answer
any charge which is preferred against him. If the fisherman residing within 10 kms of a
 Sanctuary or National park uses a boat not used for commercial fishing, in the territorial
waters in the sanctuary or national park, no such boat will be seized.

Any authorized person can order to stop any activity done by a person without any ownership
certificate or license or any permit, provided that according to this Act the permit or license is
required for such act. It is even lawful for the authorized officer to detain any person, to arrest
such person unless if he satisfies the officer arresting him that he will duly answer any summons
or proceedings which may be taken against him. Any person detained or the things which were
seized in the course of exercising the power by any authorized officer shall be produced before
the Magistrate to be dealt in accordance with the law.

Any person who has been suspected of acting unlawfully under this Act, if fails to produce the
required documents, permit or license or fails to prove his innocence shall be guilty for an
offence under this Act. Where any uncured trophy, wild animal, meat, plant or any derivative of
it has been seized by authorized officer, such authorized officer can arrange the sale of the same
and will acquire and use the proceeds as may be prescribed under this Act. If it was proved that
such property does not belong to the Government then such sale proceeds will be given to the
owner.

If any person approaches any authorized officer for prevention or detection of an offence, such
assistance must be provided by the authorized officer. No person who is below the rank of
Assistant Director or Wildlife Chief Warden shall have the power to issue the warrant, to compel
any person to produce any document, to receive any evidence or to issue a search warrant.

Cognizance of Offences

Section 55 states that no court should in any case take the cognizance or knowledge of any
offence committed against this Act on the complaint of any other person than the Chief Wildlife
Warden or any other person authorized in his behalf by the state or the Director of the Wildlife
Protection or any other person authorized on his behalf or any person who has been given a
notice of 60 days to make a complaint of the alleged offence to the Central Government or State
Government or any authorized officer therein.
 Module 3- Environmental Laws in India

Chapter- IV
Forest (Conservation) Act, 1980
Introduction
Forest is the foremost resource which provides food, shelter, wood and to maintain ecological
balance. And in the present era when these forest are cutting down to raise building, all these
animals, people for whom the forest is known as the shelter and the ecological balance is
disturbing, these legislation plays a vital role to protect the forest area.

The first legal draft on this issue was the Indian Forest Act, 1865. Later, it was replaced by
the Indian Forest Act, 1927 during the colonial period. The main focus of the Act of 1927 was on
timber. The Act of 1927 was divided into the 13 chapters and consisted of the 86 Sections. It
gave power to the State to control the rights of tribal people to use forests. Under this Act, the
government was also empowered to create reserved forests.

After independence, the need to conserve the forests became stronger and therefore, the
President of India enforced the Forest (Conservation) Ordinance, 1980. The ordinance was later
repealed by virtue of Section 5 of the Forest (Conservation) Act, 1980 which came into force on
October 25, 1980. It was passed to protect the forests of the country and the matters related to it.
It also covers the issues which were not addressed by the previous Act. Under the 1980 Act, the
restriction was made on the use of the forests for non-forest purposes.

The parliament enacted this act post the amendment of 1976. In 1976 they brought the forest
under the concurrent list to which was earlier us state list matter. So now centre and state both
can legislate upon the matter of forest. Forest Conservation is not only a duty of state as well as
fundamental duty of a citizen. Article 48-A39 directs the state to protect and improve the
environment and safeguard wildlife and forests and under Article 51-A imposes a fundamental
duties upon a person of India to protect and improve the natural environment including forests,
lakes, rivers and wildlife and to have compassion for living creatures.

The main objective of this act is to give Central Government a power to any use of forest which
is for non forest purpose. The act comprises of only 5 sections. This act applies to whole of
India.

De- Reservation of Forest Land

39
This article was added to the Constitution of India by the 42nd amendment 1976.
When there is any area declared as reserved forest to carry out any activity which is non forest
purpose over a reserve forest, then the authority has to declare it as a de reservation of forest for
use of non forest purpose. Therefore section 2 of this Act talks about restriction of de reservation
of Forest for non forest purpose.

Non forest purpose means you are clearing out whole forest area and cultivation of coffee or tea
or species for commercial purpose will be a non forest purpose, but if any forest area caught fire
so for maintaining ecology if someone is planting plants manually it is not a non forest purpose
and management of forest like setting up set post for any wireless communication if this purpose
you have to de forest any of the forest area it is not a non forest purpose.

Under section 2 approval of Central government is necessary:

i. for declaring the area of reserve Forest which is seizes to be a reserved ( even if it is
declared a reserve forest by State Government)
ii. any forest land for non forest purpose
iii. Leasing any forest land to a private for a person or to a private company.

Exception - where there is no need of permission - for the purpose like development work in the
forest conservation of forest and wildlife establishment of checkpost wireless communication no
need of permission from central government.

Central Government from time to time coming up with a notification for exempt in particular
activities from the purview of section 2, that means the activities which they are exemptimg they
do not need any permission from central government even though they are non forest purpose
activity. So activities like oil pipeline, petroleum mining, electric cables, drinking water supply,
development of village on fringes, PHC vocational training centres, etc, are the activities which
are non forest purpose but they are exempted to come under the purview of section 2 by the
notification from ministry of Environment and Forest.

Setting up of Advisory Committee

Central Government cannot be e an expert in every manner so this committee is set up to advise
central government to grant permission under section 2 aur not. Though, the final decision is in
the hands of Central Government this committee is only to assist whether to grant the permission
or not.

There is a non constant clause under section 2 means whatever mention in any other law does not
matter person have to require permission from Central Government under section 2 of this act
but for example if there is any mining activity and there is any act which is governing this
particular activity of non forest purpose so a person cannot just do away with the permission
from Central Government under this section that person has to take permission from that
authority under the other governing act also.
In the case of TN Godavaraman V. Union of India, 40 - kundremukh Iron Ore Co. Ltd -
kundremukh National Park case. A company was operating this factory in kundremukh National
park. They were operating this company before this act came and before that area declared to be
a reserved area now they applied for renewal of their lease so they can continue their mining and
all for 20 years more. So here when the conflict arises they already had a right to mine and they
had obtained permission with due procedure according to the law which was there at that time.
According to the previous law they were asking for renewal now so they were not wrong in the
part.

But there were some development happen this area is declared to be a reserved area and under
forest act one cannot carry on any activity in a reserved area and to carry any activity which is a
non forest purpose activity they have to give a permission from central government. So to solve
this conflict they set up and forest advisory Committee under section 3 to advise the central
government for the grant of approval or not. This committee suggested that we can allow for
whatever activity is happening for four more years and then this company has to come and go
through the process of taking permission from the central government for approval of their
activities there cannot be an unqualified clearance of 20 years it has to go through the procedure
under section 2 and then they can gain clearance.

In the Relek Case court said even though one might have carrying out non forest activity before
the enactment of this act then also they have to go for the clearance that is permission from the
central government and even after act got clearance again they have to go for renewal.

Prospective Effect
The provision of this act will come in picture only from the commencement of this act so if any
activity was going before the commencement of this act that activity cannot gain clearance
according to this act but they can only get renewal from this act which means any activity which
started before the commencement of this act will govern under the previous act only but if they
need any renewal it can get renewal under this new act even its activity started before. But the
judicial pronouncements are finding a way to cover these lacunae.

Penalty
Anyone contravening any of the provision of section 2 you will be punishable with simple
imprisonment for a period which may extend to 15 days.41

This Section 3B was also added by the amendment made in 1988. This section talks about the
offences committed by the Authorities and the government Department. According to section
3B(1), whenever any offence under this Act is committed by any department of the government,

40
(1997) 2 SCC 267
41
Under Section 3-A of this Act
head of the government, any authority or any person who at the time of the commission of the
offence was responsible for the conduct of business, shall be made liable for the offence under
the Act. However, the same person can save himself by proving that the offence was committed
without his knowledge and also, he took all the possible measures to prevent the commission of
the offence.

According to section 3B(2), when an offence under this Act has been committed by a person
other than the department of the government, head of the government or the authority mentioned
under sub-section 1, with his consent or due to his negligence, then such persons shall be
declared guilty under the Act and also be made liable to proceedings and punishments.

In the case of Tarun Bharat Singh v. Union of India (1993), a voluntary organization approached
the Supreme Court through a PIL filed under Article 32 of the Indian Constitution. The petition
was against the illegal mining going on in the reserved area of the Alwar District. Despite the
fact that the area was reserved under the Act, the state government had granted hundreds of
licenses for mining marble. The Court held that whenever an area is declared as the protected
forest it comes within the purview of the Forest (Conservation) Act and now, the State
government cannot carry on any non-forest activity in the reserved area without the prior
permission of the Central government. As mining is a non-forest activity, the State government’s
action to grant a license for mining or renewing their licence for mining is contrary to law. An
interlocutory direction was also passed to the State government and the mine owners to stop the
illegal activity in the reserved area.

Drawbacks of the Forest (Conservation) Act:

 This Act has just transferred the powers from States to Centers to decide the conversion
of reserve forest lands to non-forest areas. Thus, powers have been centralized at the top.

 Very marginal participation of the poor community in the Act remains one of the major
drawbacks which affect proper execution of the Act.

 Forest-dwelling tribal communities have a rich knowledge about the forest resources,
their values and conservation. But their role and contribution are neither acknowledged
nor honored

 The Act has failed to attract public support because it has infringed upon the human
rights of the poor native people.

 Efforts are now being made to make up for gaps in laws by introducing the principles of
Public trust or Human rights protection.