Section 39D explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 39D is where the Air Act still imposes imprisonment. It makes failure to comply with section 21 (the consent requirement) punishable with imprisonment and fine, with a higher tier if the failure continues for a year after conviction. It also makes it an offence not to pay a penalty or additional penalty within ninety days of its imposition. Sub-sections (4) and (5) extend liability to companies and the people running them.
This article is current as amended up to the Jan Vishwas (Amendment of Provisions) Act, 2023 (in force for this Act from 1 April 2024). That Act replaced sections 37 to 41 with sections 37, 38, 38A, 39, 39A, 39B, 39C and 39D; sections 40 and 41 no longer exist. Later amendments and notifications should be checked. If you are facing a prosecution or a recovery notice, our legal dispute resolution team can help.
Section 39D(1): failing to comply with section 21 is punishable with imprisonment for not less than one year and six months, up to six years, and with fine, and a further fine of up to fifty thousand rupees a day after conviction. Section 39D(2): if the failure continues beyond one year after conviction, imprisonment of not less than two years, up to seven years, and fine. Section 39D(3): failure to pay a penalty within ninety days is punishable with up to three years, or fine up to twice the penalty, or both. A company and those in charge can be held guilty.
Section 39D(1): failure to comply with section 21
"Whoever fails to comply with the provisions of section 21, shall, in respect of each such failure, be punishable with 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, and in case the failure continues, with an additional fine which may extend to fifty thousand rupees for every day during which such failure continues after the conviction for the first such failure."
Section 21 contains the ban on establishing or operating an industrial plant in an air pollution control area without consent, and the duties on those who hold consent; see section 21. Imprisonment has a floor of one year and six months and the offender also faces a fine. The Act prints no amount for that fine. The daily additional fine is a ceiling ("may extend to"), and it runs only "after the conviction for the first such failure".
Section 39D(2): continuing failure
"If the failure referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall 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."
Section 39D(3): failure to pay a penalty
"Where any person fails to pay the penalty or the additional penalty, as the case may be, imposed under the provisions of this Act within ninety days of such imposition, he shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to twice the amount of the penalty or additional penalty so imposed or with both."
This sub-section applies to any penalty imposed under the Act, including those under sections 37, 38, 38A and 39; see sections 37, 38 and 38A and sections 39 to 39C. The ninety days run from the imposition; the section does not address how an appeal interacts with that period.
Section 39D(4) and (5): companies and officers
Section 39D(4). Where an offence under sub-section (1), (2) or (3) has been committed by a company, every person who, at the time the offence was committed, "was directly 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 such offence" and may be proceeded against and punished accordingly. The proviso: no such person is liable if he proves "that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence".
Section 39D(5). Despite sub-section (4), where an offence has been committed by a company and it is proved that it was 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", that person "shall also be deemed to be guilty of that offence".
Explanation. For this section, "company" includes body corporate, firm, trust, society and any other association of individuals, and "director" includes a director of the company, a partner of the firm, members of the society or trust or members of any association of individuals.
The section at a glance
| Sub-section | Failure | Punishment as printed |
|---|---|---|
| (1) | Failure to comply with section 21 | Imprisonment not less than one year and six months, up to six years, and fine; additional fine up to fifty thousand rupees a day after conviction while the failure continues |
| (2) | Failure under (1) continues beyond one year after conviction | Imprisonment not less than two years, up to seven years, and fine |
| (3) | Failure to pay a penalty or additional penalty within ninety days of imposition | Imprisonment up to three years, or fine up to twice the penalty, or both |
| (4) and (5) | Offence by a company | The company and those in charge, or those with consent, connivance or neglect |
Section 3 of the Jan Vishwas (Amendment of Provisions) Act, 2023 provides that fines and penalties in the enactments in its Schedule increase by ten per cent of the minimum amount after the expiry of every three years from its commencement. The figures above are as printed. Complaints about these offences are governed by section 43, which also allows a complaint by the adjudicating officer.
The matching offences in the Environment (Protection) Act and the Water Act are in sections 15E and 15F of the EP Act and sections 45E to 48 of the Water Act.
Practical points
- Get consent before you operate, and comply with its conditions within the period the Board specifies.
- Diarise ninety days from the imposition of any penalty.
- Brief your directors and document due diligence; the provisos allow a defence of lack of knowledge or due diligence.
An example
Sutlej Fabrics Private Limited starts a new boiler in an air pollution control area without applying for consent and is convicted under section 39D(1). The director in charge of the plant can also be proceeded against under sub-section (4), unless he proves the offence was committed without his knowledge or that he exercised all due diligence.
Need help with a prosecution?
An offence under section 39D carries imprisonment and personal exposure for those in charge. Our legal dispute resolution team can help you assess the complaint, the defences in the provisos and the steps to take next.
Key takeaways
- Failing to comply with section 21 is an offence punishable with imprisonment (not less than one year and six months, up to six years) and fine.
- A failure continuing more than one year after conviction attracts imprisonment of two to seven years and fine.
- Failure to pay a penalty within ninety days is an offence with imprisonment up to three years, or fine up to twice the penalty, or both.
- A company and those directly in charge, or those with consent, connivance or neglect, can be held guilty, subject to the printed defences.
- Sections 40 and 41 no longer exist.
Read next
- Section 21: consent to establish or operate an industrial plant
- Sections 39 to 39C: adjudicating officer, appeal and Fund
- Sections 45E to 48 of the Water Act: offences and Government Departments
- Sections 15E and 15F of the EP Act: failure to pay
Disclaimer: Based on the Environment (Protection) Act, 1986, the Air (Prevention and Control of Pollution) Act, 1981 and the Public Liability Insurance Act, 1991 as amended by the Jan Vishwas (Amendment of Provisions) Act, 2023 (in force for these Acts from 1 April 2024), the Water (Prevention and Control of Pollution) Act, 1974 as amended by its Amendment Act of 2024 (which applies only in the States and Union territories it names and in States that adopt it), and the National Green Tribunal Act, 2010 as amended by the Tribunals Reforms Act, 2021, as consulted on 3 October 2026. Later amendments, rules and notifications should be checked. This article is general information, not legal advice; check the official text before acting.