Introduction

Air pollution is a major challenge around the globe. It alone is estimated to kill about 2 million people every year in India and the problem is more critical in the capital city and its adjoining areas. For curbing the problem in a more effective and efficient way, the need of setting up a commission was felt for the management of air quality in the National Capital Region and its adjoining areas, which could better coordinate and research as well as identify the problems surrounding the air quality index and could also come up with a better resolution of such problems. Therefore, to set up such a commission the Parliament enacted, The Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 (hereinafter referred to as the “Act”) which came into force on the 13th of April 2021. The Act applies to the National Capital Region (hereinafter referred to as “NCR”) and its adjoining areas. NCR constitutes a total of 24 districts of the state of Haryana, Uttar Pradesh, and Rajasthan along with the whole of the National Capital Territory of Delhi. The word adjoining areas as mentioned under the Act includes areas of Punjab along with Haryana, Punjab, Rajasthan, and Uttar Pradesh, which are adjoining the NCR and where any source of pollution is located, which causes adverse impacts on air quality in the NCR. The Act repealed the Environment (Protection) Act, 1986 and as well as dissolved the Environment Pollution (Prevention and Control) Authority.

Commission under the Act

The Commission for Air Quality Management in National Capital Region and Adjoining Areas (hereinafter referred to as “the Commission”) has exclusive jurisdiction over the matters covered under the Act in NCR and adjoining areas. The Commission is given wide powers and the orders or directions passed by it shall prevail over orders or directions of respective state governments, the Central Pollution Control Board, State Pollution Control Boards or Pollution Control Committee of Delhi or any other statutory authority set up or established under a State Act. The Commission shall have the following powers amongst others for the purpose of protecting and improving the quality of the air in the NCR and adjoining areas:

1. The power to take all such measures, issue directions, and entertain complaints, as it deems necessary or expedient, to protect and improve the air quality in the National Capital Region and adjoining areas.
2. To constitute one or more special investigation teams, consisting of such officers or such persons, as it thinks necessary, for the purposes of carrying out its functions under this Act.
3. Planning and execution of a programme for the region for prevention, control and abatement of air pollution.
4. Laying down parameters for the quality of air in its various aspects and for the emission or discharge of environmental pollutants from various sources that have implications on air quality in the region.
5. Restriction of areas in which any industries, operations or processes or class of industries, operations or processes, that have implications on air quality in the region, shall not be carried out or shall be carried out subject to certain safeguards.
6. Carrying out and requiring investigations and research relating to problems of environmental pollution that have implications on air quality in the region.
7. Inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances.
8. Giving such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of air pollution in the region.
9. Collection and dissemination of information in respect of matters relating to air pollution in the region.
10. Appointing officers and entrusting them such powers and functions for the purposes of achieving the objects of this Act.
11. Issuing directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.
12. The Commission or any officer authorised by it shall, for the purpose of analysis, have the power to take samples of air from any factory, premises or any other place.

Graded Response Action Plan (GRAP)

The Graded Response Action Plan (GRAP) was notified by the Environment Ministry in January 2017 and was implemented through the Environment Pollution (Prevention & Control) Authority (EPCA). Basically, GRAP is an emergency response plan which comes into force when air quality deteriorates in NCR and adjoining areas. After the Act came into effect the GRAP came under the aegis of the Commission.

The GRAP is incremental in nature, which means that depending upon the Air Quality Index (AQI), different agencies and bodies have to take requisite measures accordingly. The GRAP was revised by the Commission and currently, the GRAP for NCR has been classified under 4 different stages of adverse air quality in Delhi viz. Stage – I ‘Poor’ (AQI 201 – 300), Stage – II ‘Very Poor (AQI 301-400), Stage – III ‘Severe’ (AQI 401-450) and Stage – IV ‘Severe +’ (AQI >450) respectively.

Different restrictive actions are invoked under different stages and restrictive actions undertaken as per previous stages are continued, in addition to the restrictive actions envisaged under the new air pollution stage. For example, restrictive actions under the Stage III category, whenever invoked, shall be in addition to those under Stage I and II respectively. The Revised GRAP for NCR can be read here by clicking here.

Powers of the Commission to issue Closure directions.

As mentioned above the Commission has the power to issue directions. This power of the Commission to issue directions also includes the power to direct the closure, prohibition, or regulation of any industry, operation or process; or stoppage, or regulation of the supply of electricity or water or any other service.

In the wake of the powers given to the Commission, it has issued a comprehensive policy to curb air pollution in NCR, GRAP, multiple statutory directions, advisories, and orders from time to time to curb the menace of air pollution since its formation in 2021. The Commission has also deputed flying squads for field visits and inspections of different sites contributing to the deteriorating air quality of Delhi-NCR and reporting their compliance with the directions to the Commission. The Commission has issued closure directions to various establishments due to the alleged non-compliance of statutory directions such as the GRAP which are issued by the Commission from time to time and the Act and rules made thereunder. The closure directions also mandate the imposition of deterrent environment compensation charges on the establishments along with action for prosecution under the provisions of the Act. In some cases, the establishments are allowed to resume their operation after levying suitable Environmental Compensation.  

Sanctioning Methods

If a person or a company does not comply with and act in contravention of any provisions of the Act, or rules made thereunder, or any order or direction issued by the Commission the same shall be an offence and can be punishable with imprisonment for up to five (5) years or a fine of up to one crore rupees or both. But such an offence shall be non-cognizable and will be triable by the Judicial Magistrate of the First Class. The Magistrate shall take cognizance of such offence only upon a complaint made by the Commission or any officer authorized by the Commission.

This provision is not applicable to the farmers for causing air pollution by stubble burning or mismanagement of agricultural residue. However, the Commission is further empowered to impose and collect environmental compensation from farmers causing air pollution by stubble burning, at such rate, and in such manner, as may be prescribed.

Remedy against the Orders of the Commission

If any person is aggrieved by any order, direction or action taken by or on behalf of the Commission, he can file an appeal against such order, direction or action which shall lie before the National Green Tribunal constituted under the National Green Tribunal Act, 2010. The Act also bars civil courts to entertain any suit, proceeding or dispute pertaining to or arising out of the actions taken or directions issued by the Commission under this Act. The exclusive jurisdiction is given to the National Green Tribunal to entertain such cases.

In several cases, it has been observed that the Commission passes adverse orders against any entity for alleged non-compliance of statutory directions issued by the Commission from time to time and the Act and rules made thereunder without even giving any opportunity to represent itself. For eg. in the case of M/s BMV Fragrances Pvt. Ltd. Vs. Commission for Air Quality Management in National Capital Region and Adjoining Areas & Ors. [Appeal No. 44/2022] where an appeal was filed by the Appellant company against the Closure Order dated 24.11.2022 passed by the Commission wherein the Commission directed the appellant company to close its unit for violation of conditions for non-user of the generator without RECD & dual fuel system for industrial purposes in terms of GRAP Stage-II orders which were invoked on 19.10.2022. However, while passing such orders the appellant company was never given an opportunity to present its case and no show cause notice or opportunity was given to the appellant. Moreover, the closure order was passed without specifying any timeframe. Furthermore, the electric supply of the appellant company was also disconnected. Therefore, the appellant company challenged the closure orders for being in violation of the principles of natural justice. Deciding over the issue Hon’ble Principal Bench of the National Green Tribunal held that, “looking at the facts and circumstances and also in the interest of justice, we direct that the impugned order dated 24.11.2022 shall be treated to be a provisional or interim order and Commission shall consider the appellant’s representation dated 30.11.2022 and take a final decision in the matter within one week from the date of presentation of a copy of this order before Commission. Till then, we permit the appellant to resume the functioning of the unit and the electricity supply shall also be restored, subject to the undertaking given by appellant through his counsel that DG set installed at the premises of the appellant shall not be used by the appellant and it shall also maintain and observe all other directions issued under GRAP Stage-II orders effective from 19.10.2022 for the purpose of observation of air quality in national capital region and adjoining areas.”

In the case of M/s Rathi Special Steel. Ltd. Vs. Commission for Air Quality Management in National Capital Region and Adjoining Areas & Ors. [Appeal No. 28/2022 and29/2022], the Appellant Company filed an appeal before the Hon’ble Bhopal Bench of National Green Tribunal challenging the order dated 21.01.2022 passed by the Commission whereby the commission directed the immediate closure of the appellant’s unit without providing the opportunity of hearing or show cause notice to the appellant and also directed Rajasthan State Pollution Control Board to initiate prosecution under against appellant’s unit. The order was challenged on grounds of violation of the principle of natural justice. The Hon’ble Bhopal Bench of the National Green Tribunal while deciding over the matter ordered the Commission to take a decision on the case and the appellant was permitted to resume operations till the pendency of the case. In compliance of the order passed by NGT, the Commission gave multiple opportunities of hearing to the appellant, and the matter was finally closed, and the Commission issued fresh order against the Appellant on 05.05.2022. The appellant again challenged the fresh orders passed by the Commission; however, both the Appeals were transferred to the Hon’ble Principal Bench of NGT in Delhi due to jurisdiction issues. Finally, the Hon’ble Principal Bench of NGT while deciding over both the appeals held that there were lapses from the side of the appellant in following the relevant environmental laws. The Tribunal also held that a show cause notice was not issued to the appellant before passing the order dated 21.01.2022. However, the procedural error was rectified, pursuant to Tribunal’s order in the first appeal filed by the appellant, and the order dated 05.05.2022 was passed by the Commission after giving the suitable opportunity of hearing to the appellants. The Principal Bench further held that the Commission was right in its decision to issue a closure order against the appellant.

It can be very well observed from both the above-mentioned judgments that whenever any order has been passed by the Commission in violation of the principles of natural justice, the Tribunal has always tried to rectify the defect and has given relief to the Appellant. It is also pertinent to highlight here that before filing an Appeal directly before the National Green Tribunal it is always advised to first give representation to the Commission and in case the Commission fails to take a timely decision over the matter then only an appeal can lie before the Tribunal. If the Tribunal finds out that the order was passed by the Commission without following principles of natural justice, it will try to provide the relief and may quash or stay the effect of such closure orders.

Conclusion

 With the prime objective to abate the air pollution levels in the NCR, the Commission for Air Quality Management in NCR and Adjoining Ares Act was enacted and subsequently a commission was formed. The commission plays a pivotal role in monitoring the status of air pollution, the enforcement of laws after monitoring and research, and providing innovative solutions to curb air pollution in Delhi NCR and adjoining areas. The Commission has been given wide powers which include restricting activities influencing air quality, investigating and conducting research related to environmental pollution impacting air quality, preparing codes and guidelines to prevent and control air pollution, and issuing directions on matters including inspections, or regulations which will be binding on the concerned person or authority amongst others. Different stages of GRAP are invoked by the Commission when the AQI levels in Delhi NCR reach a certain limit. Besides GRAP and a comprehensive policy to curb air pollution in NCR, various statutory directions, advisories and orders have been issued by the Commission from time to time. Contravention of provisions of the Bill, or orders and directions of the Commission will be punishable with imprisonment of up to five years, or fine of up to one crore rupees, or both.  The Bill excludes farmers from the scope of these penalties.  However, the Commission may collect environmental compensation from farmers causing pollution by stubble burning. If someone is aggrieved by any order or direction of the Commission an appeal can be filed before the National Green Tribunal which has the exclusive jurisdiction to try such matters.