Water Pollution and The Law

A
PRESENTATION
ON
WATER POLLUTION AND THE LAW
By
Prof. (Dr.) Rajiv Khare
NATIONAL LAW INSTITUTE UNIVERSITY
BHOPAL
The Water (Prevention and Control of Pollution) Act,
1974
 THE BACKDROP:
 Water, a life sustaining element must be preserved from all types of
pollutants.
 ‘Water’ as a legislative head is placed in the List II (entry 17) of the VII
schedule of our Constitution, making it a State prerogative to enact law on
water including prevention and control of water pollution.
 An exponential growth of pollution of rivers and streams due to
industrialisation and urbanisation was witnessed after independence,
making it essential to regulate and control through a comprehensive
uniform legal framework to combat the menace of water pollution,
particularly ensuring that the domestic and industrial effluents are not
allowed to be discharged in the water bodies rendering it unfit for human
consumption and use.
 The journey for enactment of Water Act by Parliament marked its beginning in
the year 1962 wherein a Committee was set up to draft model Bill for
prevention, control and abatement of water pollution.
 Several rounds of deliberations and discussions on the Bill with all the
stakeholders, particularly with State Govts,, Committee of Ministers of Local
of Self Govt., Town and Country Planning etc were held primarily for a reason
that the Parliament was not competent to enact the Law by virtue of distribution
of legislative powers under Schedule VII.
 Finally the Bill was passed by the Parliament as nearly 12 States had passed a
resolution under Article 252 (1) of the Constitution empowering Parliament to
enact the Law to regulate the water pollution by the States which had passed
the resolution.
 Further Article 252 (2) empowers other States, which did not pass resolution
initially, to adopt the Law subsequently and accordingly the Act is applicable
in all the States in our country.
Aim and Object of the Law:
 The main aim and object of the Act is “to maintain or restore the
wholesomeness of water;
 To prevent, control and abate water pollution; and
 To provide for the establishment of Pollution Control Boards for the
purpose of the Act and to confer powers, assign functions relating thereto
on the PCBs.
Water ‘Pollution’ as defined under section 2(e) of the Act, 1974 means:
(i) Contamination of water; or
(ii) Alteration of physical, chemical or biological properties of water; or
(iii) Discharge of sewage or trade effluents; or
(iv) Any other solid, liquid or gaseous substance which may or is likely to
create– nuisance, or render such water harmful or injurious to public
health or safety; or domestic, commercial, industrial, agricultural or other
legitimate uses, or to the life and health of animals or plants or acquatic
organisms.
SALIENT FEATURES OF THE ACT, 1974
 Constitution of Boards:
 The Act provides for the establishment of three types of Boards, i.e. the
Central, State and Joint Boards (for two or more contiguous state upon
an agreement by the two contiguous States and by the Central Govt. in
case of UT and one or more governments of the states) under ss. 3, 4,
and 13 respectively.
 Both the Central and State PCBs consist of 17 members to be nominated
by the respective governments.
 The Central Pollution Control Board (CPCB) has a full time chairman,
official members, members of State Boards(not exceeding 5), non
official members representing agriculture, fishery or industry or trade or
any other interest (not exceeding 3) and two persons representing
companies or corporations owned/managed by the Central Government.
 The Board is also empowered to constitute Committees for any purpose
under section 9 and may also associate itself with any person who can assist
and advice the Board (S. 10). The Board shall meet at least once in every
three months (S.8).
 The SPCBs too have 17 members with a Chairman (full time or part time) 5
Govt. officials, 5 members of the local authorities, 3 non official members,
2 representatives of the companies or corporations owned/managed by the
State Govt. and a full time member secretary. (Section 4)
 The term of the members including chairman is 3 years from the date of his
appointment but can continue even after expiry of the term till the new
member enters upon his office.
 The Central or State Government (as the case may be may remove any
member before expiry of the term and such member shall be given
reasonable opportunity of hearing before his removal. Also a member
automatically becomes disqualified on failing to attend “three consecutive
meetings” of the Board without any explanation. (See Section 5)
FUNCTIONS OF P.C.Bs. (Section 17)
 Plan comprehensive program for prevention, control or abatement of
pollution;
 Advise State Government as the case may be
 To collect and disseminate information
 To encourage, conduct and participate in investigation and research;
 To organise training programme for personnel in collaboration with
CPCB;
 To inspect sewage or water bodies;
 To lay down, modify or annul effluent standards
 To evolve efficient methods of disposal of sewage and economical and
reliable methods of treatment waste;
 To lay down standards of treatment of sewage and trade effluents;
 To make vary or revoke any order for prevention, control and abatement
of discharges of wastes;
 To establish and recognise laboratory etc
 For detailed functions of the CPCB refer to section 16), the CPCB also
performs functions of SPCB in case of Uts and where SPCB has been
superseded and the new Board has not been constituted.
POWERS OF POLLUTION CONTROL BOARDS (ss 20-33A)
 Power to obtain information (s 20)

 Power to take samples of effluents for analysis (s. 21)
 Power of entry and inspection (s 23)
 Power to impose restrictions on new outlets and new discharges (s 25)
 Power to refuse or withdraw consent for establishment of any industry, etc
(s 27)
 Power to carry out certain works (s 30)
 Power to carry out emergency operations in case of pollution of stream or
well (s 32)
 Power to make application to courts for restraining apprehended pollution
of water in streams or wells (s 33)
 Power to give directions (s. 33A)
a. Closure, prohibition or regulation of any industry, operation or process; or
b. Stoppage or regulation of supply of water, electricity or any other service.
Powers of State Boards
 S-20: Power to obtain information includes:
a. To make surveys, and keep records of streams and wells;
b. Direct any person in-charge of any industry, operation or process,
treatment or disposal system to furnish information regarding any
disposal system or any extension or alteration thereto.
 S-21: Power to take samples of effluents and procedure thereof:
a. Prior notice to take samples
b. Two samples to be collected in presence of the occupier or his agent;
c. Sample so collected shall be marked, sealed and signed by both
persons;
d. One of the sample shall be sent to the state laboratory or any other
laboratory so recognised.
e. Send the second container on request of the occupier or his agent to
another laboratory as under section 51 or 52.
(Delhi Bottling Co. (P) Ltd v. C.P.C.B., AIR 1986 Del 152) wherein the
Court ruled that the procedure laid down under section 21 must be
complied with. The procedure as given under 21 (e) was not
complied with.
(Cont’d)
 S. 23: Power of Entry and Inspection:
(a) Person must be empowered by the Board;
(i) For performing any function of the Board
(ii) To ensure compliance of the directions, orders of the Board;
(iii) To examine any plant, record, register, document etc
(iv) To conduct search of any place and seize plant, record or other
material object to furnish evidence of the commission of an offence.
(Provisions of Cr.P.C. (S. 94) regarding search and seizure also
apply)
 S.24: Prohibition of use of stream or well for disposal of polluting
matter etc.
(MC Mehta v. Union of India, (1987) 4 SCC 463, (Kanpur tanneries
case)
(MC Mehta v. Kamal Nath, (2002) 3 SCC 653, M/s. Span Motels
Resort case)
 S. 25: Restrictions on new outlets
Prohibits persons from:
(i) Establishing any industry, operation or process; or
(ii) Bringing into use any new or altered outlets for the discharge of
sewage;
(iii) Beginning to make any new discharge of sewage; without
previous consent of the Board.
 Deemed Consent and its Consequences (s. 25 (7):

In Vijayanagara Ednl Trust v. K.S.P.C.B., AIR 2002 Kar 123, the
Karnataka High Court found fault with the procedure and refusal
to give deemed consent by the SPCB as the application to obtain
consent was not responded within the statutory limitation period,
i.e. four months from the date of application. The court treated it
as a deemed consent .
POWERS OF THE BOARDS (SS. 19-33A)
 To obtain information, collect effluent samples, entry & inspection
 To prohibit use of stream for disposal of polluting matter; impose
restrictions on new outlets/discharges
 To grant/refuse/withdraw consent given u/s 25
 To initiate proceedings against the defaulters for restraining apprehended
pollution of water;
 The power to issue closure orders, prohibition of any industry, operation
or process; and
 To order stoppage or regulation of supply or water, electricity or any
other service. (ss. 33 & 33A)
 The Central Govt. and the Boards have been empowered to issue
directions to any person, officer or authority and such persons are bound
to comply the directions.
 In re Bhawani River—Shakti Sugars Ltd,, (1998) 2 SCC 601 may be
referred as failure to comply directions of the Board led to the issuance of
closure directions under S. 33-A)
OFFENCES AND PENALTIES (SS. 41-45A)
 Violation/non compliance of the provisions, rules or directions
issued under the Act are offence and the punishment prescribed is
between 3 months to seven years and /or fine up to Rs. 10,000.
 The companies and Government Departments are also liable to
penalties.
 In case of a government department, the Head of the Deptt is deemed
to be guilty of the offence and is liable for the penalty. However, he

may absolve himself of the liability in case he can prove that
(i) offence was committed without his knowledge or
(ii) that he exercised due diligence. (S. 48)
 Similar provision and exceptions have been prescribed under S. 46 in
case of offences by Company.

Other Miscellaneous features
 Powers to give directions (S.18): The CPCB is bound by the directions
of the Central Government and every SPCB by the directions of the
CPCB or the State Government.
 Also the State Govt. in consultation with or on the recommendations of
the SPCB has the power to restrict the operation of the Act for certain
area(s) (S.19), but State Govt. cannot exempt particular industry to
operate in a prohibited area.
 Cognizance of offence and Bar of Jurisdiction (S. 49 & 58): The court
of JMFC or Metropolitan Magistrate are to take congnizance on the
application by the Board or its authorised member or any person who
has given notice of not less than 60 days to make a complaint to the
Board. No Civil Court can entertain any suit or proceedings against the
defaulter or aggrieved person. (May refer Sreenivasa Distilleries v. S.R.
Thyagrajan, AIR 1986 AP 328)
 The provisions of this Act have overriding effect under section 60.
 The Central and the State Govt. are empowered to supersede their
respective Boards, i.e. CPCB/SPCB. (S. 61 & 62).
List of Important Cases

I. KCP Sugar & Industries Corpn v. Govt. of AP (2005) 11 SCC 544
II. Gujrat PCB v. Nicosulf Indus & Export (P) Ltd, (2009) 2 SCC 171
III. Thirpur Dyeing Factory Owners Assn v. Noyyal River Protection

Association (2009) 9 SCC 737
IV. Goan Real Estate and Construction Ltd. v. UOI (2010) 5 SCC 388.
V. Vamika Island (Green Lagoon Resort) v. UOI, (2013) 8 SCC 760.

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WATER POLLUTION AND THE LAW

 To provide for the establishment of Pollution Control Boards for the

(ii) Alteration of physical, chemical or biological properties of water; or

(iii) Discharge of sewage or trade effluents; or

 Power to obtain information (s 20)

 Deemed Consent and its Consequences (s. 25 (7):

to be guilty of the offence and is liable for the penalty. However, he

case of offences by Company.

List of Important Cases

III. Thirpur Dyeing Factory Owners Assn v. Noyyal River Protection

V. Vamika Island (Green Lagoon Resort) v. UOI, (2013) 8 SCC 760.

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