After the Stockholm conference on Human Environment on June, 1972, it was considered appropriate to have uniform law all over country for broad Environment problems endangering the health and safety of our people as well as of our flora and fauna. The Water (Prevention & Control of Pollution) Act, 1974 is the first enactment by the Parliament in this direction. This is also the first specific and comprehensive legislation institutionalizing simultaneously the regulatory agencies for controlling water pollution. The Pollution Control Board at the Centre and in the State came into being in terms of this Act.
According to the Article 51 A (g) it is the fundamental duty of every citizen of India to protect and improve the natural environment included Forest, Lakes, Rivers and Wildlife and to have compassion for living creatures. Water Act is enacted with the aim of prevention and control of Water Pollution in India. Pollution means contamination of water or such alteration of the Physical, Chemical or Biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gas and Solid substance into water (whether directly or indirectly) as may be the case or is likely to create nuisance or render such water harmful or injurious to public health or safety or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plant or of aquatic organizations.
Water is being used and abused indiscriminately in India. Conflicts and disputes, therefore, continue to arise over issues of water sharing, water allocation, liability, sanctions, usages, water markets and water pricing. Disputes are resolved either in the formal or the informal sectors. At the informal, local level, there are the Panchayats and the Naya Panchayats which help in solving some of the water related disputes. Other disputes are brought to the courts.
In light of the fact that surface water and groundwater are the major sources of water supply for different uses, their pollution creates a situation where water may be available in sufficient quantity but there is water scarcity due to quality concerns. The sources of water pollution can be divided into point sources and non-point (or diffuse) sources – the former include disposal of untreated or partly treated industrial effluents and domestic sewage while the latter include agricultural run-off. Water pollution can also result from encroachments, sand mining, religious activities, dumping of waste, etc.
Under the Constitution, water, sanitation and public health are included in List II of the Seventh Schedule; in other words, state governments rather than the Central Government exercise powers in respect of these subjects. The 73rd and 74th Constitutional Amendment Acts in the year 1992 led to the introduction of Parts IX and X in the Constitution, which constitutionalised local level governing bodies, that is, municipal authorities in urban areas and Panchayati Raj Institutions (Gram Sabhas or panchayats) in rural areas. States have been vested with the discretion to delegate any or all of the functions relating to water, sanitation and public health, among others, to these local bodies.
Acts causing environmental pollution may constitute crime. Until the Water Act was enacted in 1974, disputes relating to water, including pollution, were booked under the Indian Penal Code (IPC), 1860 and the Criminal Procedure Code (CrPC), 1878 (and later the amended Act, i.e., the Criminal Procedure Code, 1972 ). The British had enacted the IPC 1860 and the CrPC 1878 for better administration of their colony and to help them (the British) to better exploit the natural resources of India. These laws were applicable uniformally all over the country. The types of cases that were booked under these laws related to public nuisance, mischief, theft, and so on.
The Parliament recognizing the importance of water free from pollution enacted the Water (Prevention and Control) of Pollution Act in 1974 (Water Act, 1974). This Act was enacted to ensure the wholesomeness of water and to ensure that with industrialization and growth of cities domestic and industrial effluents and waste waters are not thrown into the streams and rivers without being treated first. For these purposes the act also envisages the creation of a Central Pollution Control Board and the State Pollution Control Boards in the States.
Although the main legislation dealing with water pollution is the Water Act, 1974, most of the litigations have been filed under the general criminal law or under Articles 32 and 226 of Constitution of India. In the period between 1980 to 1990, there has been a massive increase in pollution related litigations. In fact, just from 1990 to 1993, upto thirteen judgements have been delivered by different courts on this issue. And a number of prosecutions against polluting industries have been launched under Section 33 of the Water Act.
In the Pondicherry Paper Mills case, the Madras High Court ruled that the remedy under Section 33 was independant of the rights of the Pollution Control Board. Regarding the nature of evidence in water pollution cases, the Delhi High Court stated in the M/ SDelhi Eonling Co. Put. Ltd. Vs. CPCB, 1986 that samples not taken in strict compliance with Section 21 of the Act are inadmissible as evidence.The court made it clear that the sample of water must be lifted from stream or well only in accordance with the provision of the Water Act. Such technical requirements of the court only obstruct and dilute the essence of the Act, which is to prevent water pollution. Taking note of this, the Supreme Court, in the cases of Satish Sabharwal Vs, State of Maharashtra, 1986, UP PCB Vs. M/s Modi Distillery and Mahmud Ali Vs. State, repeatedly ruled that technical obstacles in the interpretation of the environmental law will not be allowed to come in the way of prevention of water pollution . But implementation of this rule to its full potential has yet to be done.
The Water Act is enacted with the objective of prevention & control of pollution in India. The Act aims at the maintaining or restoring the wholesome nature of water for the establishment of Boards and to vest them with such powers so as to enable them to carry out the purposes of the Act. The Water Act is followed by the Water (Prevention & Control of Pollution) , 1975 and the Water (Prevention & Control of Pollution (Procedure for transaction of Business )Rules, 1975. The provisions of the Act shall have effect not with stranding anything contained to the contrary in any other enactment.
The Water Act establishes the Central Pollution Control Board (CPCB) (at the national level) and the State Pollution Control Board (SPCB) or the Pollution Control Committee (at the State/Union Territory level) to carry out the objectives under the Act.
Section 3 of the Water Act provides that the Central Board shall consist of the following members, namely
(a) a full-time chairman, being a person having special knowledge or practical experience in respect of matters relating to environmental protection or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the Central Government;
(b) such number of officials, not exceeding five, to be nominated by the Central Government to represent that Government;
(c) such number of persons, not exceeding five, to be nominated by the Central Government, from amongst the members of the State Boards, of whom not exceeding two shall be from those referred to in clause (c) of sub-section (2) of section 4;
(d) such number of non-officials, not exceeding three, to be nominated by the Central Government, to represent the interests of agriculture, fishery or industry or trade or any other interest which, in the opinion of the Central Government, ought to be represented;
(e) Two persons to represent the companies or corporations owned, controlled or managed by the Central Government, to be nominated by that Government;
(f) A full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the Central Government. (3) The Central Board shall be a body corporate with the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and to contract, and may, by the aforesaid name, sue or be sued.
According to Section 4 of the Act:
Provided that in relation to any Union territory the Central Board may delegate all or any of its powers and functions under this sub-section to such person or body of persons as the Central Government may specify.
Joint boards may be constituted for two or more state Governments or two or more Union territories.
According to section 6 of the Water Act :
(1) No person shall be a member of a Board, who
No order of removal shall be made by the Central Government or the State Government, as the case may be, under this section unless the member concerned has been given a reasonable opportunity of showing cause against the same.
According to section 16 of the Water Act:
(1) Subject to the provisions of this Act, the main function of the Central Board shall be to promote cleanliness of streams and wells in different areas of the States.
(2) In particular and without prejudice to the generality of the foregoing function, the Central Board may perform all or any of the following functions, namely:—
(a) Advise the Central Government on any matter concerning the prevention and control of water pollution;
(b) Co-ordinate the activities of the State Boards and resolve dispute among them;
(c) Provide technical assistance and guidance to the State Boards carry out and sponsor investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution;
(d) Plan and organise the training of persons engaged or to be engaged in programmes for the prevention, control or abatement of water pollution on such terms and conditions as the Central Board may specify;
(e) organise through mass media a comprehensive programme regarding the prevention and control of water pollution;
(ee) perform such of the functions of any State Board as may be specified in an order made under sub- section (2) of section 18;
(f) collect, compile and publish technical and statistical data relating to water pollution and the measures devised for its effective prevention and control and prepare manuals, codes or guides relating to treatment and disposal of sewage and trade effluents and disseminate information connected therewith;
(g) lay down, modify or annul, in consultation with the State Government concerned, the standards for a stream or well: Provided that different standards may be laid down for the same stream or well or for different streams or wells, having regard to the quality of water, flow characteristics of the stream or well and the nature of the use of the water in such stream or well or streams or wells;
(h) plan and cause to be executed a nation-wide programme for the prevention, control or abatement of water pollution; (i) perform such other functions as may be prescribed.
(3) The Board may establish or recognise a laboratory or laboratories to enable the Board to perform its functions under this section efficiently including the analysis of samples of water from any stream or well or of samples of any sewage or trade effluents.
Section 17 of the Water Act provides that:
The Board may establish or recognise a laboratory or laboratories to enable the Board to perform its functions under this section efficiently, including the analysis of samples of water from any stream or well or of samples of any sewage or trade effluents.
According to section 18 of the water Act
(1) A State Board or any officer empowered by it in this behalf shall have power to take for the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from or over any place into any such stream or well.
(2) The result of any analysis of a sample of any sewage or trade effluent taken under sub-section (1) shall not be admissible in evidence in any legal proceeding unless the provisions of sub-sections (3), (4) and (5) are complied with.
(3) Subject to the provisions of sub-sections (4) and (5), when a sample (composite or otherwise as may be warranted by the process used) of any sewage or trade effluent is taken for analysis under sub-section (1), the person taking the sample shall—
(a) serve on the person in charge of, or having control over, the plant or vessel or in occupation of the place (which person is hereinafter referred to as the occupier) or any agent of such occupier, a notice, then and there in such form as may be prescribed of his intention to have it so analysed;
(b) in the presence of the occupier or his agent, divide the sample into two parts;
(c) cause each part to be placed in a container which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent;
(d) send one container forthwith,— (i) in a case where such sample is taken from any area situated in a Union territory, to the laboratory established or recognised by the Central Board under section 16; and (ii) in any other case, to the laboratory established or recognised by the State Board under section17;
(e) on the request of the occupier or his agent, send the second container,— (i) in a case where such sample is taken from any area situated in a Union territory, to the laboratory established or specified under sub-section (1) of section 51; and (ii) in any other case, to the laboratory established or specified under sub-section (1) of section 52.
(4) When a sample of any sewage or trade affluent is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent, a notice under clause (a) of sub-section (3) and the occupier or his agent wilfully absents himself, then,— (a) the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be, of clause (e) of sub-section (3) and such person shall inform the Government analyst appointed under sub-section (1) or sub-section (2), as the case may be, of section 53, in writing about the willful absence of the occupier or his agent; and (b) the cost incurred in getting such sample analysed shall be payable by the occupier or his agent and in case of default of such payment, the same shall be recoverable from the occupier or his agent, as the case may be, as an arrear of land revenue or of public demand: Provided that no such recovery shall be made unless the occupier or, as the case may be, his agent has been given a reasonable opportunity of being heard in the matter.
(5) When a sample of any sewage or trade effluent is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent a notice under clause (a) of sub-section (3) and the occupier or his agent who is present at the time of taking the sample does not make a request for dividing the sample into two parts as provided in clause (b) of sub-section (3), then, the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be, of clause (d) of sub-section (3).
Provided that the right to enter under this sub-section for the inspection of a well shall be exercised only at reasonable hours in a case where such well is situated in any premises used for residential purposes and the water thereof is used exclusively for domestic purposes.
(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board,
(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or
(b) bring into use any new or altered outlet for the discharge of sewage; or
(c) begin to make any new discharge of sewage:
Provided that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, 1988 (53 of 1988), for which no consent was necessary prior to such commencement,
(2)(a) constructing, improving or maintaining in or across or on the bank or bed of any stream any building, bridge, weir, dam, sluice, dock, pier, drain or sewer or other permanent works which he has a right to construct, improve or maintain;
(b) depositing any materials on the bank or in the bed of any stream for the purpose of reclaiming land or for supporting, repairing or protecting the bank or bed of such stream provided such materials are not capable of polluting such stream;
(c) putting into any stream any sand or gravel or other natural deposit which has flowed from or been deposited by the current of such stream;
(d) causing or permitting, with the consent of the State Board, the deposit accumulated in a well, pond or reservoir to enter into any stream.
(3) The State Government may, after consultation with, or on the recommendation of, the State Board, exempt, by notification in the Official Gazette, any person from the operation of sub-section (1) subject to such conditions, if any, as may be specified in the notification and any condition so specified may by a like notification be altered, varied or amended.
(4) The State Board may
(a) grant its consent referred to in sub-section (1), subject to such conditions as it may impose, being— conditions as to the point of discharge of sewage or as to the use of that outlet or any other outlet for discharge of sewage; (ii) in the case of a new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the discharge or new discharge is to be made; and (iii) that the consent will be valid only for such period as may be specified in the order, and any such conditions imposed shall be binding on any person establishing or taking any steps to establish any industry, operation or process, or treatment and disposal system of extension or addition thereto, or using the new or altered outlet, or discharging the effluent from the land or premises aforesaid; or
(b) refuse such consent for reasons to be recorded in writing.
(5) Where, without the consent of the State Board, any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or a new discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be, a notice imposing any such conditions as it might have imposed on an application for its consent in respect of such establishment, such outlet or discharge.
(6) Every State Board shall maintain a register containing particulars of the conditions imposed under this section and so much of the register as relates to any outlet, or to any effluent, from any land or premises shall be open to inspection at all reasonable hours by any person interested in, or affected by such outlet, land or premises, as the case may be, or by any person authorised by him in this behalf and the conditions so contained in such register shall be conclusive proof that the consent was granted subject to such conditions.
(7) The consent referred to in sub-section (1) shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months of the making of an application in this behalf complete in all respects to the State Board.
Where immediately before the commencement of this Act any person was discharging any sewage or trade effluent into a stream or well or sewer or on land the provisions of section 25 shall, so far as may apply in relation to such person as they apply in relation to the person referred to in that section subject to the modification that the application for consent to be made under sub-section (2) of that section shall be made on or before such date as may be specified by the State Government by notification in this behalf in the Official Gazette.
Whoever contravenes the provisions of section 24 shall 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.
Whoever contravenes the provisions of section 25 or section 26 shall 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.
(1) 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 offences and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if the proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), 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.
Explanation: For the purposes of this section - (a) “Company” means any body corporate and includes a firm or other association of individuals; and (b) “Director” in relation to a firm means a partner in the firm.
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:
Provided that nothing contained in this section shall render such Head of the Department liable to any punishment 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.
This Act provides for a levy and collection of a cess on water consumed by industries and local authorities. It aims at augmenting the resources of the central and state boards for prevention and control of water pollution. Following this Act, The Water (Prevention and Control of Pollution) Cess Rules were formulated in 1978 for defining standards and indications for the kind of and location of meters that every consumer of water is required to install.
After the implementation of the Water Cess Act, 1977 many industries have challenged the imposition of the cess. These challenges required the courts to go into various issues, namely, interpretation of the Act, nature of industry, nature of end product, and so on.
The Patna High Court in the famous TISCO case titled, TISCO Vs. State of Bihar, 1991, held that a cess imposed under the Water Cess Act is by way of compulsory exaction of money by a public authority for a public purpose. Tha court further stated that a cess is to be imposed for the purpose of treating the effluent of the factory and other sewage so that the common public may not have to use contaminated water or polluted water.
The issue of interpreting the Water Cess Act also came up before the Kerala High Court in the Kerala SPCB Vs. Gwalior Rayon SilkManujacturing (Weaving) Co., 1986, case. The Hon’ble Court stated that rules that sought to ensure regulation of the release of effluents into rivers are in the interest of the public and are therefore valid. In addition they stated that mere installation of a treatment plant doesnot entitle one to a rebate. In other words the court ruled that the Cess Act should be construed liberally. However the Supreme Court, in the.A.P. Rayons Lid. case, ruled otherwise. Viewing the statute as a fiscal one, tha court held that it must be construed strictly. This was reiterated by the Supreme Court in Rajasthan State Electricity Board Vs. Cess Appelate Committee, 1991.
The constituitionality of Sections 19 and 24 of the Water Act have been challenged before the Rajasthan and Gujarat High Courts in M/s Agganval Textiles Vs. State of Rajasthan, 1981 and M/s Abhilash Textiles Vs. Rajkot Municipal Corporation, respectively. However, both courts upheld the validity of the provisions, stating that the power granted by these provisions was not unbridled and did not violate Articles 14 and 19 of the Constitution of India.
In this case1), a public interest litigation was filed seeking the enforcement of the statutory provisions which impose duties on municipal authorities and the SPCB constituted under the Water Act. The Supreme Court observed that the municipal authorities have the statutory duty to prevent public nuisance caused by pollution of the river Ganga and therefore, the municipal corporation of Kanpur has to bear the major responsibility for river pollution near the city.The Court also took note of the fact that many of the provisions of the Water Act and the municipal laws for prevention and control of water pollution have just remained on paper without any adequate action being taken pursuant thereto.
In this case2), among other claims, it was alleged that water in wells and streams in village Bichhri in Udaipur district in the State of Rajasthan had become unfit for consumption as a result of disposal of untreated toxic sludge from an industrial complex located within the limits of the village. The Supreme Court held that the respondents were absolutely liable to pay compensation for the harm caused by them to the villagers in the affected area and surrounding areas as well as to the environment. According to the Court, the power to levy costs required for carrying out remedial measures is implicit in the Environment Act.