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Report No. 186

Two proposals can be considered here.

(1) One is that section 28 of the Water (P&CP) Act, 1974 be substituted under the proposed Act, prescribing an appeal to the Environment Court. The said amendment will then get incorporated in the parent Act and will substitute section 28 in all those States where the Water Act is in force, either because of its original resolution or because of subsequent adoption. But, in those States where the Water (P&CP) Act, 1974 has not come into force at all, it is possible to make a provision in the proposed Act that the proposed section 28 giving a right of appeal to the Environment Court shall alone be applicable whenever the Water (P&CP) Act, 1974 is adopted in those States, or

(2) We may, instead, provide that notwithstanding anything in section 28, Water (P&CP) Act, 1974, the person aggrieved by an order of Pollution Board passed under section 25 or 26 of Water Act, can appeal to the Environment Court. Such a provision would apply 115to Water (P&CP) Act, 1974 where it is now in force or where it will be adopted in future.

In our view, the second proposal is preferable inasmuch as it will be referable to Article 253 and will have overriding effect over the Act passed under Article 252, even where the States, which have not so far adopted the Act, would opt to adopt the parent Act of 1974 or the Act as amended in 1978 or in some other manner.

Summarising our conclusion,- the Air (P&CP) Act, 1981 and the Environment (Protection) Act, 1986 were passed by Parliament with reference to the Stockholm Conference of 1972 (i.e. under Article 253) and the National Environment Tribunal Act, 1995 was passed by Parliament by referring to the Rio de Janeiro Conference, 1992 and the National Environment Appellate Authority Act, 1997 was passed specifically for the purpose of enforcing the safeguards under the Environment (Protection) Act, 1986.

Therefore, there is no difficulty for Parliament passing a law relating to Environment Courts in exercise of its powers under Article 253 to amend or repeal the Air (P&CP) Act, 1981, The Environmental (Protection) Act, 1986, National Environment Tribunal Act, 1995 and National Environment Appellate Authority Act, 1997. Similarly, such a law made under Article 253 can override the provisions of section 28 of the Water (P&CP) Act, 1974 which enables the State Government to constitute the appellate authorities.

The power which was given to the State Government under the Water (P&CP) Act, 1974 in section 28 to constitute appellate authorities can be superceded by fresh provisions of law proposing Environment Courts, as the 116appellate Court, in the manner stated above. Such a law can be passed under Article 253 of the Constitution.



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