The Tax PublishersOffences, Penalties and Appellate Procedure

The scheme of Water (Prevention and Control of Pollution) Act, 1974 does not end after the prevention of water pollution, rather it also provides for the penalties for contravening different provisions made under the Act. An aggrieved person is entitled to make appeal against the impugned order to the prescribed authority within the prescribed time limit. The Act also empowers the State Government with revisionary powers for satisfying itself as to the legality or propriety of any such order.

1. Penalties

The penalties provided under the Act for various provisions are mentioned in the following Table.

PENALTIES

S. No.

Offences

Relevant section

Amount of penalty

1.

Failure to give any information about abstraction of water in substantial quantities from any well or stream or discharging sewage or trade effluent into any such stream or well or failure to furnish information regarding the construction, installation or operation of such establishment or of any disposal system

41(1)

Imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees or with both. In case the failure continues, with an additional fine which may extend to five thousand rupees for everyday during which such failure continues after the first conviction

2.

Failure to comply with any order restraining the person concerned from discharging any poisonous, noxious or polluting matters into the stream or well or with any direction related with desistance from taking such action as is likely to cause pollution or any direction issued under section 33A

41(2)

Imprisonment for a term not less than one year and six months but which may extend to six years and with fine, and in case of the failure continues, with an additional fine which may extend to five thousand rupees for every day during which such failure continue after the first conviction. However, if the failure continues beyond a period of one year, the offender shall, on conviction, be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine.

3.

Destruction, removal, injury or deface of any pillar, post or stake fixed in the ground or any notice or other matter put up under the authority of the Board

42(1)(a)

Imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees or with both.

4.

Obstruction of any person acting under the orders or directions of the Board from exercising his powers and performing his functions

42(1)(b)

-do-

5.

Damage of any work or property belonging to the Board

42(1)(c)

-do-

6.

Failure to furnish any information required by any officer or employee of the Board

42(1)(d)

-do-

7.

Failure to intimate the occurrence of any accident or other unforseen act or event causing the water pollution, to the Board or other agencies authorised

42(1)(e)

-do-

8.

In giving any information required under the Act, knowingly or wilfully making a statement false in any material particular

42(1)(f)

-do-

9.

For obtaining any consent as required under section 25 or 26 of the Act, making any false material particular

42(1)(g)

-do-

10.

Alteration or interference with any devise used in pursuance of the provisions of section 25 or 26 for the grant of consent, so as to prevent it from monitoring or measuring correctly

42(2)

Imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees or with both

11.

Contravention of the provisions of section 24 which deals with prohibition on use of stream or well for disposal of polluting matter

43

Imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine

12.

Contravention of the provisions of section 25 and section 26, which deal with restrictions on new outlets, new discharges and existing discharge of sewage or trade effluent respectively

44

-do-

13.

Second or subsequent contravention of provisions of section 24 or section 25 or section 26, again, after the conviction of an offence under the same provision

45

Imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine

14.

Contravention of any of the provisions of the Act or failure to comply with any order or direction given under this Act, for which no penalty has elsewhere provided in the Act

45A

Imprisonment which may extend to three months or with fine which may extend to ten thousand rupees or with both and in the case of continuing contravention, with an additional fine which may extend to five thousand rupees for everyday during which such contravention or failure continues after the first conviction

In addition to above penalties, section 46 provides that if any person convicted of an offence under this Act commits a like offence afterwards, it shall be lawful for the court before the second or subsequent conviction to cause the offender's name and place of residence, the offence and the penalty imposed to be published at the offender's expense in newspaper or in any other manner as the court may direct the related expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine.

2. Offences by companies [Section 47]

Section 47 states that where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. However, if such person proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence, it will be a defence for him.

Where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

For the purposes of this section,--

(i) 'company' means any body corporate, and includes a firm or other association of individuals; and

(ii) 'director' in relation to a firm means a partner in the firm.

3. Offences by Government Departments [Section 48]

Where an offence under this Act has been committed by any Department of Government, the head of the department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly but if such head of the Department proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence, he shall not be proceeded against and punished.

4. Cognizance of offences [Section 49]

The provisions relating to cognizance of offences are contained in section 49 of the Act. Accordingly, no court shall take cognizance of any offence under this Act except on a complaint made by--

(i) a Board or any officer authorised in this behalf by it; or

(ii) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Board or officer authorised as aforesaid,

Where a complaint has been made under clause (b) above the Board shall, on demand by such person, make available the relevant reports in its possession to that person. However the Board may refuse to make any such report available to such person, if the same is, in its opinion, against the public interest.

It shall be lawful for any Judicial Magistrate of the first class or for any Metropolitan Magistrate to pass a sentence of imprisonment for a term exceeding two years or of fine exceeding two thousand rupees on any person convicted of an offence punishable under this Act.

5. Publication of names of offenders [Section 46]

If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or subsequent conviction takes place to cause the offender's name and place of residence, the offence and the penalty imposed to be published at the offender's expense in such newspapers or in such other manner as the court may direct and the expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine.

6. Appeals [Section 28]

Section 28 provides that any person aggrieved by an order made by the State Board under section 25, section 26 or section 27 may, within thirty days from the date on which the order is communicated to him, prefer an appeal to the authority (hereinafter referred to as the appellate authority) constituted by the State Government.

However, the appellate authority may entertain the appeal after the expiry of the said period of thirty days if such authority is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. Appeal shall be in prescribed form and shall be accompanied by prescribed fees.

An appellate authority shall consist of a single person or three persons, as the State Government may think fit, to be appointed by that Government.

On receipt of an appeal preferred the appellate authority shall, after giving the appellant and the State Board an opportunity of being heard, dispose of the appeal as expeditiously as possible.

If the appellate authority determines that any condition imposed, or the variation of any condition, as the case may be, was unreasonable, then--

(i) where the appeal is in respect of the unreasonableness of any condition imposed, such authority may direct either that the condition shall be treated as annulled or that there shall be substituted for it such condition as appears to it to be reasonable;

(ii) where the appeal is in respect of the unreasonableness of any variation of a condition, such authority may direct either that the condition shall be treated as continuing in force unvaried or that it shall be varied in such manner as appears to it to be reasonable.

7. Revision [Section 29]

The State Government may call for the records of any case where an order has been made by the State Board under section 25, section 26 or section 27 for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it may think fit. However, the State Government shall not pass any such order without affording the State Board and the person who may be affected by such order a reasonable opportunity of being heard in the matter.

The State Government shall not revise any order made under section 25, section 26 or section 27 where an appeal against that order lies to the appellate authority, but has not been preferred or where an appeal has been preferred such appeal is pending before the appellate authority.

SUBSCRIBE TaxPublishers.inSUBSCRIBE FOR FULL CONTENT

TaxPublishers.in

'Kedarnath', 7, Avadh Vihar, Near Nirali Dhani,

Chopasni Road

Jodhpur - 342 008 (Rajasthan) INDIA

Phones : 9785602619 (11 am - 5 pm)

E-Mail : mail@taxpublishers.in / mail.taxpublishers@gmail.com