WATER POLLUTION AND THE LAW

Table of Contents
INTRODUCTION .......................................................................................................................... 3 MEANING OF WATER POLLUTION ......................................................................................... 3 NECESSITY TO FRAME A SEPARATE LAW ON WATER POLLUTION ............................. 4 WORKING OF THE ACT ............................................................................................................. 5 THEACT ......................................................................................................................................... 7 A. THE ENFORCEMENT MACHINERY -THE BOARDS .................................................... 7 (i) Constitution of the Central Board and the State Boards ..................................................... 7 (ii) Constitution of Joint Boards ............................................................................................. 8 (iii) Terms and Conditions of Service of Members ................................................................. 8 (iv) Meeting of the Board ....................................................................................................... 9 (v) Powers and Functions of the Central Board .................................................................... 9 vi) Powers and Functions of the State Boards ....................................................................... 10 B. PREVENTION AND CONTROL OF WATER POLLUTION .......................................... 11 (i) Power of the Board to obtain information and take samples ............................................ 12 (ii) Report of the analysis of the samples taken................................................................ 12 (iii) Power of entry and inspection ........................................................................................ 12 (iv) Problem of Enforcement of Standards ............................................................................ 13 C. EMERGENCY MEASURES .............................................................................................. 14 D. APPREHENDED POLLUTION .......................................................................................... 15 E. AVAILABILITY AND USE OF FUNDS ........................................................................... 17 F. PENALTY AND SANCTION ............................................................................................ 18 (i) Penalty for certain Acts.................................................................................................... 18 G. OFFENCES BY COMPANIES ........................................................................................... 20 H. COGNIZANCE OF OFFENCES ......................................................................................... 21 I. MISCELLANEOUS PROVISIONS ...................................................................................... 21 (i) Power of Central Government to make rules: .................................................................. 22
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WATER POLLUTION - SOME SELECTED DECISIONS........................................................ 23 1. Kanpur Tanneries case .......................................................................................................... 24 2. The Municipalities Case ........................................................................................................ 25 3. Pollution of River Kathajori .................................................................................................. 25 4. Intervention by the apex Court .............................................................................................. 26 5. Doctrine of Public Trust ........................................................................................................ 27 6. Calcutta Tanneries Case ........................................................................................................ 28 7. Badkhal and Surajkund Lakes case ................................................................................. 29 BIBLIOGRAPHY ......................................................................................................................... 30

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INTRODUCTION
Water is the cause of the earth. Taking in to consideration the importance of water and the multifarious of its use in our daily life, water is being considered as the lifeline of our ecological existence. It is because the health of the human being is at the center point of all and it is no denying the fact that for healthy living water plays an important role. It is said that health is not a state of mere living but is a fundamental right of living. So when we analyse the sustenance of our life we see that we the human beings are totally dependent on the water. The total quantity of water available in this earth is fixed which circulates in a cyclic form from the land to the oceans, to the atmosphere and back again. The water available in nature in any form is totally pure and free from any form of contamination which helps every kind of organism to have a healthy living on this earth. That is why the emphasis has always been made on the importance of such pure water from time immemorial. But we have failed to maintain the purity of this precious gift of nature and the water we use is contaminated and has become heavily polluted. If proper care is not taken the day is not too far off when the water will become scarce for human consumption.

MEANING OF WATER POLLUTION
Pollution of water has been defined as the addition or doing of something to water which changes its natural quality. The term „pollution‟ is used variedly to mean different things in different statutes. While some described it as nuisance others were of the view that the pollution means causing the water corrupted. Halsbury's Law of England in a simpler language defines pollution in relation to water as “the doing of something which changes the natural qualities of water, including its temperature”.1 Another meaning appended to water pollution is that "pollution is the introduction into water of substances of such character and quantity that its natural quality is so altered as to impair its usefulness or render it offensive to the senses of sight, taste or smell".2 Another acceptable definition of water pollution is "the presence of substance in water in such quantities and of such quality that the water's value to other users is unreasonably impaired”.3 Thus water pollution in general refers to those changes in water which are

1 2

N.Manivasakam, Environment Pollution, NBT Fourth Edition Vol.49para783 Liptak, Environment Engineers, II Handbook, Water Pollution, 1956-57 (1974). Quoted bv LS Mathur in " A Federal Legislative History of Control of Water Pollution in India" in Legal Control of Environmental Pollution, Ed. by S.L.Agrawall, ILl, 1980 at p. 93. 3 C.V. Goleand Mahesh Chand, "Water Pollution Control-A need of the Day" in Legal Control of Environmental Pollution' Ed. by S.L. Agrawal, ILl, 1980 at p 32.

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produced artificially by human agency. However, the Indian Law on this point seems to be more comprehensive which defines water pollution as: Such 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, gaseous or solid substance into water (whether directly 'or indirectly) as mayor is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate users, or to the life and health of animals or plants or of aquatic organism".4 Thus, pollution of water means rendering the water unfit for human consumption by bringing changes in its natural quality.

NECESSITY TO FRAME A SEPARATE LAW ON WATER POLLUTION
With the attainment of independence, introduction of five year plans was an important job taken by the Central Government. The objectives set out in the First Five Year Plan proved to be a success and the Second Five Year Plan inherited an atmosphere of economic stability which intended to give a 'big push' to the Indian Economy. 5 Therefore, during this plan period emphasis was given on rapid industrialization. By that time, the Government also declared its industrial policy which was aimed at "providing guidelines for the effective co-ordination and integration of the activities of the various sectors of the economy to achieve a balanced and self-reliant pattern of development that can ensure rapid growth.6 Thus, the first industrial policy after independence was announced in 1948 which aimed at "laying the foundation of a mixed economy in which both public and private enterprises would march hand in hand to accelerate the pace of industrial development."7 By the time the second industrial policy resolution was announced in 1956just on the eve of the Second Five Year Plan, our planners have made it clear to have a sound social and economic policy. So to give a fresh look to the industrial policy, this second resolution was passed which basically favoured the public sector to bring fast economic development. With this aim industries came to be established on a massive scale. Once an industry is established, it is to produce some wastes and without finding any alternate they saw the rivers as easy and convenient to discharge their wastes and effluents. The rivers which are in general the basic source of habitation and which basically meet the water requirements of everybody in their day to day life get polluted by these discharged wastes. With this process going on,
4 5

Water (Prevention and Control of Pollution) Act, 1974, Section 2(e). Dutta&Sundhararn, Indian Economy, 1981 at pp. 174-175. 6 Ibid., at p. 123. 7 Ibid., at p. 124.

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the river water has become unfit for human consumption. In the meantime the other problems like urbanisation and growth of population added to the misery by putting heavy pressure on water and water courses. When the problem started increasing it was thought to develop proper strategies for effective implementation of corrective action. In the absence of any remedies, the best medium for such prevention is definitely the law and the legal process. Thus, in the era of rapid industrialization and growing concern for water pollution the necessity to frame a separate law particularly to control water pollution was seriously felt. Before the attainment of independence, i.e., during the British Rule certain legislations came up to control the fouling of water.8 Although these laws tried to prevent the pollution of water, they couldn't prove efficacious against the spread of pollution that began to occur as a result of India's rapidly growing population accompanied by increasing hazards of domestic and industrial needs with recent added array of agricultural pesticides and insecticides which have further aggravated the problem of water pollution.9 After independence attempts were also made by several states with Orissa taking the lead to enact legislations with an aim to control the water pollution but the same also proved to be inadequate. Similarly the Indian Penal Code 1860 which is one of the earliest enacted legislation which had some provision relating to public health, safety etc. 10 (which are considered to have a direct bearing on the environment) and aimed at controlling water pollution through criminal sanction, also failed to keep pace with the expanding needs of prevention and control of water pollution. Therefore, it was thought that the problem be tackled by enacting a Central legislation as it has become a national problem. Taking into consideration all these, the enactment of a specific and stringent law on the national basis gathered momentum. Thus, after hectic activities, the Government of India came out with a legislation namely "Water (Prevention and Control of Pollution) Act, 1974 11which was then termed as the statute par excellence". This was also considered as one of the most comprehensive legislations ever enacted to control water pollution which became law on 23rd March 1974.

WORKING OF THE ACT

8

These laws are the "Shore Nuisance (Bombay and Colaba) Act, 1853, the "Orient Gas Company Act, 1857", the "Serais Act, 1867", the "Northern India Canal and Drainage Act, 1873", the "Obstruction of Fairways Act, 1881", the "Indian Easements Act, 1882", the "Indian Fisheries Act, 1897", the "Indian Ports Act, 1908, the "Inland Steam Vessels Act, 1917" and the "Indian Forests Act, 1927'. 9 PremVerma, "Water Pollution: Its Causes and Cures", in 'Legal Control of Environmental Pollution', Ed. by S.L. AgrawalILl at p. 110 : 10 The said provisions are contained in Chapter XIV of the Code which deals with offences affecting the public health, safety etc. 11 Act No.6 of 1974 which received the assent of the President of India on 23rd March,.1974 and published in the Gazette of India, Extraordinary, Pt. II, Sec 1, dated 25th March 1974.

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Keeping in mind the rising concern for water pollution control, the Government of India appointed an Expert Committee in October, 1962 to study the question and also to prepare a draft legislation to deal with water pollution resulting from domestic and industrial wastes. The Committee, after a comprehensive study of all aspects of the problem, recommended that Central and State legislations should be enacted in this field.The Central Council of Local self-Governments which considered the recommendation of the Expert Committee on 7th September 1963, resolved to recommend the enactment of a single law by the Parliament so that there may be uniform measures throughout the country, to control water pollution. The recommendations of the Expert Committee and the resolutions of the Central Council were considered by the Government of India and it was decided to have a Central legislation on water pollution. A Draft Bill was prepared in 1965 and the Draft was put up for consideration before a joint session of the Central Council of Local-self Governments and the fifth conference of State Ministers, Town and Country Planning. However, there appeared a hurdle in the way making it difficult for the Bill. 'Water' as a subject has been put by the Constitution of India in the State list12 and as per the provision the Parliament had no power to enact a legislation on such a matter unless "desired by two or more States, thereby enabling the Parliament to make laws for the States”.13 Thus, keeping this in mind, the Central Government circulated the Draft Bill to all the States in December 1965 with a request to pass resolutions authorising the Parliament under Article 252 (1) of the Constitution of India to enact a law on the subject of prevention and control of water pollution. After six states have passed the enabling resolution to enact the law on their behalf, the Government of India introduced the Bill in the RajyaSabha in December 1969 and in August 1970,the Upper House decided to refer the Bill to Joint Committee of both the Houses. The Joint Committee, after thorough and comprehensive examination suggested several modifications and presented its report along with the Modified Bill to Parliament on 13th November 1972. In the meantime six more states have passed the enabling legislation and also in the international front that Stockholm Conference held in the year 1972 14 mounted pressure on the countries to take special care of natural resources including safeguarding of water and water resources. All these led to the smooth passing of the Bill in the Parliament in early 1974 and the President accorded his assent on 23rd March 1974. Thus, with this the "Water (Prevention and Control of Pollution) Act, 197415 came into force.
12 13

Entry 17 in List 11 of the 7th Schedule. Constitution of India, Article 252(1). 14 This United Nations Conference was held at Stockholm, Sweden from June 5-16, 1972 on'Human Environment' having become conscious of the worldwide concern for keeping the environment safe for human existence. 15 Supra, note 14.

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THEACT
The Water (Prevention and Control of Pollution) Act, 1974 bears its long title as: "An Act to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith". The Statement of Objects and Reasons of the Act states that the problem of pollution of rivers and streams has assumed considerable importance and urgency and it seeks to ensure that the domestic and industrial effluents are not allowed to be discharged into water courses without adequate treatment. The Act is quite comprehensive in its coverage of various types of waters. The objective of the Act is very clear that it seeks'to prevent and control water pollution and also to maintain and restore the wholesomeness of water' which is indicative of the legislative intent. The Act also makes the provisions for the establishment of Central Board for prevention and control of water pollution and State Boards for the same purpose which are autonomous bodies. The Act further seeks to control pollution primarily through standards to be laid down by the Boards and the consent orders issued by them. As the Act aims at the welfare of the people and is seen to have more immediate and visible impact on the social vices like hazards of pollution, the Act can very well be called a welfare legislation.

A. THE ENFORCEMENT MACHINERY -THE BOARDS
For realising the objective of the Act as embodied in the Preamble, the Government of India and the State Governments are required to constitute the Central Board and the State Boards respectively16 and also for the purposes of advising the respective Governments in matters relating to prevention, control or abatement of water pollution.17 (i) Constitution of the Central Board and the State Boards To fulfill the objectives, Section 3 Clause (1) mandates the Central Government to constitute a Central Board and accordingly the most effective enforcement machinery under the nomenclature "Central Board for the Prevention and Control of Water Pollution" was set up by the Central Government.18 But after amendment the said Board has been renamed as the Central Pollution Control Board'19 and as per the provision the Board will consist of a

16 17

Water (Prevention and Control of Pollution) Act, 1974, Sections 3 and 4. Ibid; Sections 16(2) (a) and 17 (1) (b). 18 The Central Board was constituted in September 1974 under the said Act. 19 The Board has been renamed as such by section 3(a) of the Water (Prevention and Control of Pollution) Amendment act, 1988 (Act No 53 of 1988).

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full-time Chairman20 a full-time Member Secretary having qualification, knowledge and experience of scientific, engineering or management aspects of pollution controls21 and not more than 15 members to be nominated by the Government of India. These nominated members include, five officers to represent the Central Government.22 Five officers from among the members of the State Pollution Control Boards.23 three non-officials to represent the interests of agriculture, fisheries, industry or trade or any other interest and two persons to represent the companies or corporations owned, managed or controlled by the Central Government.24 The Central Board is a legal entity having perpetual succession and common seal. 25 It is clear from the provisions of this section that while the Chairman and Member-Secretary shall be wholetime, the rest are part time and the Member-Secretary is the only person who is appointed by the Central Government and others including the Chairman are nominated. The State Boards were also constituted on the same footing having the primary responsibility of controlling water pollution in the respective states. Here in the State Board the Chairman may either whole time or part time as the State Government thinks fit. In case of Union Territories, the Central Board is to act as the State Board as per the provision of the Act.26 (ii) Constitution of Joint Boards There is also a provision as specified in section 13 of the Act, for setting up of a Joint Board by an agreement between two or more State Governments or by the Central Government (for one or more Union Territories) and one or more State Governments. The constitution of a Joint Board as contemplated by the section would be the creation of an agreement and the respective Governments are authorised to enter into any such agreement. If a Joint Board is to be constituted for two or more States, the agreement has to be entered into by the States through their Governments and in case the Joint Board has to be created for one or more Union Territories and one or more States the agreement has to be entered into by the Central Government acting on behalf of the Union Territory or territories and the concerned State Government or Governments. (iii) Terms and Conditions of Service of Members As per the provision of section 5 of the Act, a member of the Board, other than the Member-Secretary, shall hold office for a term of three years from his date of nomination and he can continue to hold such office until his successor enters upon his office. The term of office of such nominated members shall come to an end as soon as he ceases to hold the office under the Central Government or the State. Government or as the case may be, the company or
20 21

Water (Prevention and Control of Pollution) Act, 1974, Section 3 (2) (a). Ibid., Section 3 (2) (f) as amended in 1988. 22 Water (Prevention and Control of Pollution) Act, 1974,Section 3 (2) (b) as amended in 1978. 23 Ibid., Section 3 (2) (c). 24 Ibid., Section 3 (2) (e). 25 Ibid., Section 3 (3). 26 Ibid., Section 4 (4).

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corporation owned, controlled or managed by the Central Government or the State Government. Any member of the Board can be removed before the expiry of the term by the respective Governments and the government is required to give him a reasonable opportunity of showing cause against the same. Any member other than the Member-Secretary may resign at any time by writing addressed to the Central Government or the State government in case of the Chairman and to the Chairman for others. The Member-Secretary, since he shall be a whole time appointee, should hold office until superannuated or otherwise removed from office in accordance with the provisions of this Act. (iv) Meeting of the Board Section 8 of the Act contemplates two types of meeting of the Board. Ordinarily, a Board shall meet at least once in every three months and shall observe such rules of procedure in regard to the transaction of business at its meeting. If in the opinion of the Chairman, any business of its urgent nature has to be transacted, he may convene a meeting of the Board at such time as he thinks fit for the purpose. In discharging its functions, the Board is empowered to associate itself with any person or persons whose assistance of or advice it may desire to obtain.27 (v) Powers and Functions of the Central Board Section 16 of the Act deals with the powers and functions of the Central Board which says that the main function of the Central Board shall be to promote cleanliness of streams and wells in different areas of the States. Further, the 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) organize 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
27

Water (Prevention and Control of Pollution) Act, 1974, Section 10 (1).

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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 the standards for stream or well in consultation with the concerned State Government. 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 and the nature of the use of the water. (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. For the purpose of performing the above functions the Board is empowered to establish or recognize a laboratory or laboratories including the analysis of the samples of water from any stream or well or any sewage or trade effluents as provided in sub-section (3) of Section 16. vi) Powers and Functions of the State Boards As provided under section 17 of the Act, a State Board shall exercise the following functions (a) to plan a comprehensive programme for the prevention, control or abatement of pollution of streams and wells in the state and to secure the execution thereof; (b) to advise the State Government on any matter concerning the prevention, control or abatement of water pollution; (c) to collect and disseminate information relating to water pollution and the prevention, control or abatement thereof; (d) to encourage, conduct and participate in investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution; (e) to collaborate with the Central Board in organising the training of persons engaged or to be engaged in programmes relating to prevention, control or abatement of water pollution and to organise mass education programmes relating thereto; (f) to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data relating to plants set up-for the treatment of water, works for the purification thereof and the system for the disposal of sewage or trade effluents or in connection with the grant of any consent as required by this Act; (g) to lay down, modify or annul effluent standards for the sewage and trade effluents and for the quality of receiving waters (not being water in an inter-State stream) resulting from the discharge of effluents and to classify waters of the State; (h) to evolve economical and reliable methods of treatment of sewage and trade effluents, having regard to the peculiar conditions of soil, climate and water resources of different regions and more especially the prevailing flow characteristics of

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water in streams and wells which render it impossible to attain even the minimum degree of dilution; (i) to evolve methods of utilization of sewage and suitable trade effluents in agriculture (J) to evolve efficient methods of disposal of sewage and trade effluents on land, as are necessary on account of the predominant conditions of scant stream flows that do not provide for major part of the year the minimum degree of dilution; (k) to lay down standards of treatment of sewage and trade effluents to be discharged into any particular stream taking into account the minimum fair weather dilution available in that stream and the tolerance limits of pollution permissible in the water of the stream, after the discharge of such effluents; (l) to make, vary or revoke any order, (i) for the prevention, control or abatement of discharges of waste into streams or wells; (ii) requiring any person concerned to construct new systems for the disposal of sewage and trade effluents or to modify, alter or extend any such existing system or to adopt such remedial measures as are necessary to prevent, control or abate water pollution; (m) to lay down effluent standards to be complied with by persons while causing discharge or sewage or sullage or both and to lay down, modify or annul effluent standards for the sewage and trade effluents; (n) to advise the State Government with respect to the location of any industry the carrying on of which is likely to pollute a stream or well; (o) to perform such other functions as may be prescribed or as may, from time to time, be entrusted to it by the Central Board or the State Government. Under sub-section (2) of section 17 the Board is empowered to establish or recongnise a laboratory or laboratories to perform its functions efficiently, including the analysis of the samples of water from any stream or well or of any sewage or trade effluents. Besides these functions one important aspect of the Act is also that the Central Board as well as the State Boards are to be bound by the directions issued to them in writing by the Central Gqvernment and the Central Boards or State Governments respectively as provided under section 18 of the Act. The section further provides that in case any inconsistency persists as to the direction given by the State Government and the Central Board, the matter is to be referred for a final decision to be taken by the Central Government.

B. PREVENTION AND CONTROL OF WATER POLLUTION
The State Government is empowered to restrict the operation of the Act only to such area or areas of the State as may be declared to be a water Pollution, prevention and control
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area. A declaration to this effect can be made either after consultation with, or on the recommendation of the State Board.28 (i) Power of the Board to obtain information and take samples State Board is also empowered to make surveys of any area and gauge and keep record of the flow of volume or other characteristics of any stream or well in such area as provided under section 20 (1) of the Act and also to take sample of water from any stream or well or of any sewage or any trade effluent which is passing from any plant or vessel or from or over any place into any such stream or well for the purpose of analysis as per the provision of section 21. Further sub-section (2) of section 20 empowers the Board to require the person abstracting water from any stream or well in any area in such quantity considered to be substantial in relation to the flow on the volume of that water, to give to the Board the information as to such substraction. Sub-section (3) of the said section entitles the Board to require any person in charge of any establishment carrying on any industry, operation on process or treatment and disposal system, to render information with regard to the construction, installation or operation of the establishment or of any disposal system or of any extension or addition thereto in such establishment, alongwith such other particulars, and the purpose of obtaining such information is to prevent or control pollution of water. (ii) Report of the analysis of the samples taken Section 22 of the Act provides that after receiving the samples, the analyst appointed by the Board under section 53(3) of the Act shall analyse the sample and submit his report in the prescribed form in triplicate to the Central Board or the State Board, as the case may be. One of the copies of the report is meant for the Board, another to be sent to the occupier or his agent and the third shall be preserved for production in the court for the purposes of any legal proceedings. If there is any discrepancy or inconsistency or variation in the results of the analysis carried out by the laboratory established or recognised by the Central Board or the State Board and that of the laboratory established or specified under section 51 or 52 as the case may be, the report of the latter shall prevail. (iii) Power of entry and inspection As per the provision of the section 23 of the Act any person empowered by the State Board shall have a right at any time to enter, with such assistance as he may consider necessary any place (a) for the purpose of performing any of the functions of the Board entrusted to him;

28

Water (Prevention and Control of Pollution) Act, 1974, Section 19 (1).

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(b) for the purpose of determining whether and if so in what manner any such functions are to be performed or whether any provisions of this Act or the rules made thereunder or any notice, order, direction or authorisation served, made, given, or granted under this Act is being or has been complied with (c) for the purpose of examining any plant, record, register, document or any other material object or for conducting a search of any place in which he has reason to believe that an offence under this Act or the rules made thereunder has been or is being or is about to be committed and for seizing any such plant, record, register document or other material object, if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder. However, this right to enter for inspection of a wellcan be exercised only at reasonable hours in cases where the well in question is situated in premises used for residential purposes and the water thereof is used exclusively for domestic purposes. Despite the comprehensive functions and powers assigned to the Boards they are faced with immense problems. The Boards are busy in their endeavor to identify the sources of pollution and also the extent of pollution. There are certain problems which handicap the Boards in their enforcement capacity. Problem of enforcement of standards and the problem relating to consent order with a view to restrict new outlets and new discharges are two major implementation problems which the Boards generally face while trying to prevent and control water pollution. (iv) Problem of Enforcement of Standards Fixing of standards are said to be most commonly visible while attempting to tackle the problem of pollution arising out of complex industrial licensing. Standa,rd is being defined as "a plan that is established by Governmental authority as a programme for water pollution prevention and control" whereas criteria means that "a scientific requirement on which a decision or judgment may be based concerning the suitability of water quality to support a designated use”.29 Thus, it becomes pertinent to lay down water quality standards and criteria for receiving waters which will enable us to fix the level of treatment. This is a necessity because "a criteria is to be established for the stream which can be enforced to get an acceptable quality commensurate with the beneficial use to which the receiving waters are put and to ensure that unpolluted water resource is available to us and for our future programmes”.30 However, in any case, the standards have to be set out clearly and explicitly.
29

These meanings were assigned by M. Miakhan in his Article "Consent Application -its Purport,Constitution, Purpose and Usefulness for Abatement of Water Pollution" in Legal Control of Environmental Pollution', Ed. by S.L. AgrawalILl at p. 49. 30 Ibid.

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Section 24 of the Act specifically prohibits any poisonous, noxious or polluting matter in excess of predetermined standards from entering into any stream or well. Clause (1) of the said section provides that subject to the provisions of this section (a) no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any stream or well or sewer or on land; or (b) no person shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences. A person may be given an exemption, subject to certain conditions by the State Government either in consultation with or on the recommendation of the State Board from the operation of the above provision.31 The Act also provides for a penalty of minimum imprisonment of one year and six months, which may extend to six years and with fine for violation of section 24.32 The provisions of this section has been challenged33 as violative of Article 14 of the Constitution of India alleging that the said section gives an arbitrary and imguided power to the State Government to exempt a person from the operation of sub-section (1). But the Rajasthan High Court.34 rejecting the petitions upheld the validity of the section and further was of the opinion that section 24 does not impose any unreasonable restriction on the fundamental right of any person to carryon any trade or business guaranteed under Article 19(1)(g) of the Constitution.35 All that is required for the applicability of section 24 is that the State Board has laid down the standards of effluents and once such standards have been laid down the prohibition under sub-section (1) of this section comes into operation.

C. EMERGENCY MEASURES
Besides having the power to lay down standards and prescribing conditions for controlling the water pollution, the Board is also empowered to take certain emergency measures when it appears to the Board that any poisonous, noxious or polluting matter is present in any stream or well or on land by reason of the discharge of such matter in such stream or well or
31 32

Water (Prevention and Control of Pollution) Act, 1974, Section 24(3). Ibid., Section 43 as amended in 1988. 33 Writ Petitions No. 1375, 1376 and 1377 of 1980 were filed under Article 226 of the Constitution before the Rajasthan Hight Court (Jaipur Bench). 34 Mis.AganoalTextile Industriesv. State, Writ Petition No 1375 of 1980. 35 Ibid.

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on such land36 or if the cause of the pollution is an accident or other unforeseen act or event,37 the Board can take quick action. For this the Board must have to be satisfied with the opinion that it is necessary or expedient to take immediate action. Then the Board by recording the reasons in writing is authorized to carry out such operations as may be necessary for all or any of the following purposes: (i) removing that matter from the stream or well or land and disposing it of in such manner as the Board considers appropriate; (ii) remedying or mitigating any pollution caused by its presence in the stream or well; (iii) issuing orders immediately restraining or prohibiting the persons concerned from discharging any poisonous, noxious or polluting matter in to the stream or well, or from making insanitary use of the stream or well.38 Thus, the Board is empowered enough to take necessary measures to remove pollution already present in a stream or well or on land.

D. APPREHENDED POLLUTION
There is a separate provision as provided under section 33 of the Act that the Board can take preventive action in case of apprehended pollution and the Boards use the preventive powers as given to them, generally when the violation of the conditions of consent order takes place. Thus, "when it is apprehended by a Board that water in any stream or well is likely to be polluted by reason of the disposal or likely disposal of any matter in such stream or well or in any sewer or on any land or otherwise" 39 the Board can exercise this power through the orders of the court.40 For taking any action for restraining the person causing such pollution, the Board is required to make an application to the Court, not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class.41The court while making an order restraining any person from polluting the water may in that order, (i) direct the person who !s likely to cause or has caused the pollution of the water in the stream or well, to desist from taking such action as is. likely to cause pollution or, as the case may be, to remove from such stream or well, such matter, and

36 37

Ibid., Section 32(1). Ibid. 38 Ibid. 39 Water (Prevention and Control of Pollution) Act, 1974, Section 33(1). 40 Ibid, 41 Ibid,

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(ii) authorize the Board, if the direction so given is not complied with by the person to whom such direction is issued, to undertake the removal and disposal of the matter in such manner as may be specified by the court.42 The section further says that all expenses incurred by the Board in removing any matter in pursuance of such authorization or in the disposal of any such matter may be defrayed out of any money obtained by the Board from such disposal and any balance outstanding shall be recoverable from the person concerned as arrears of land revenue or of public demand.43 The powers of the Magistrate dealing such cases of apprehended pollution came up for judicial scrutiny and the courts have been very particular while delivering their 44 judgments. Thus, the Madras High Court while dealing a case clearly basing on the doctrines of implied powers and strict enforcement of welfare legislation came to the conclusion that the courts have broad powers to pass injuctive relief and fashion orders under section 33 of the Act. Thus, since the order under this section would involve civil consequences to the party against whom such an order is passed 45 The Magistrate is bound to follow the principle of natural justice and by issuing notice to the affected party, should give him a fair chance of being heard. In another case MeghShyam Sharma v. State of U.P.,46 the court rejected the contention that there should be a separate application for injunction. In the Delhi Bottling case47 where the company failed to comply with the orders of the Board and continue to pollute the nearby river, the Board successfully with the aid of section 33(1) obtained an injunction restraining the company from doing so. So also the Orissa High Court while deciding a matter was of the opinion that when prescribed standards are not met, the Board can seek appropriate direction in terms of section 33.48 Regarding the nature of the proceedings under this section raised in a matter. 49 the Rajasthan High Court stated that the proceedings under section 33 of the Act are in the nature of criminal proceedings and the application under it is to be decided as a criminal case.

42 43

Ibid., Section 33(3). Ibid., Section 33(4). 44 PondicherruPapers Ltd. Vs. Central Board for Prevention and Control of Water Pollution, Criminal M.P. No. 4662 and 4663 of 1978 45 Mis.Suiadeshi Cotton Mills, Pondicherru vs. Union of India, for text of the judgementsee Central Pollution Control Board, Judicial Interpretation of Water Pollution Control Laws, (CPCB New Delhi 1985). 46 1985 All L.J. 1l95. 47 Delhi Bottling Co. Pvt. Ltd. v. Central Board for the Prevention and Control of Water Pollution, AIR 1986 Del. 152. 48 Orissa State Prevention and Control of Pollution Board v. Mis.Emami Paper Mills Ltd. and another, Vol. 78 (1994) CLT 383. 49 Maharaja Sri Umaid Mills Ltd. Paliv. State of Rajasthan, AIR 1998 Raj. 9.

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A newsection 33A conferring sweeping powers to the Board to issue. direction was added by an amendment50 to the Act in the year 1988. This new provision 'power to give directions' by the Pollution Control Board contains; "Notwithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions that the Central Government may give in this behalf, a Board may, iI1, the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person officer or authority shall be bound to comply with such directions”.51 This provision enhances the powers of the Board which also includes the power to direct the closure, prohibition or regulation of any industry, operation or process; or the stoppage or regulation of supply of electricity water or any other service. 52 Thus, without waiting for an order from the Court, the Board can take urgent action if needed, immediately with short notice. However in a case53 the Madhya Pradesh High Court while hearing on an order passed under section 33 found that there is lack of parity between the show cause notice and the order passed and asking the Board to insist upon strict compliance with the principles of natural justice, opined that a Pollution Control Board may not issue a closure order on extraneous considerations that travel beyond the grounds stated in the show cause notice.54 But in Re Bhavani River Sakthi Sugars Ltd.,55the orders passed by the Board directing the closure of an industry which was polluting the river water through its effluent was upheld by the Supreme Court and also the apex Court asked the Tamil Nadu Pollution Control Board to submit a report regarding the compliance of the order by the concerned industry.56

E. AVAILABILITY AND USE OF FUNDS
Generally the functioning and performance of the Enforcement Machinery, i.e., the Pollution Control Boards depend upon the availability of funds and the way they use it. Finance is not a problem for the Central Pollution Control Board as they receive regular grants from the Central Government for its smooth functioning, as specified in section 36(1) of the Act. As compared to the Central Board, the financing position of the State Boards
50 51

Inserted by Act 53 of 1988 vide Section 18. Ibid. 52 Explanation appended to section 33A. 53 Mandu Distilleries Pvt. Ltd v. M.P. PradushanNiwaranMandai, AIR 1995 M.P. 57. 54 Ibid., at p. 63 55 AIR 1998 SC 2059. 56 Re Bhavani River Sakihi Sugars Ltd" AIR 1998 SC 2059 at p. 2060.

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is not upto satisfaction. This poor financial position greatly hampered their functioning and the activities of the Board for the enforcement of statutes and receive severe jolts. Section 37(1) of the Act deals with the funds of the State Boards which says that the fund of the State Board is constituted by the sums paid from time to time to the Board by the State Government and by other receipts, by way of gifts, grants, donations, benefactions and fees or otherwise, coming to the Board. Thus, the major source of the fund of a State Board is contribution from the State Government. It becomes imperative for the State Governments to take necessary and adequate steps on a priority basis while granting or allocating funds to the Pollution Control Board for the effective implementation of pollution control laws in preventing and controlling water pollution.

F. PENALTY AND SANCTION
Coming to penalties and sanctions, in 1860 the maximum punishment for polluting the water was "imprisonment of either description for a term which may extend to three month or with fine which may extend to five hundredrupees or with both". 57 The present Act also contains several penal provisions which includes an imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees upon conviction or with both for failure to comply with any direction given by the Board under Section 20 (2) or (3).58 In case the failure continues, an additional fine which may extend to five thousand rupees per day during which such failure continues after the conviction for the first such failure may be levied.59 Further a 'similar mandatory punishment is also provided for failure to comply with' any direction issued under section 32 (1) (c) or any direction issued by. A court under sub-section (2) of section 33 or any direction issued under section 33A by a Board.60 (i) Penalty for certain Acts In addition to the abovementioned penalties, there are other penalties prescribed for certain other allied wrongs, details of which are enumerated under section 42(1) of the Act, for which punishment is imprisonment for a term which may extend to three months of fine which may extend to ten thousand rupees or with both. The wrongs which are dealt with under this section are as follows: whoever:(i) destroys, pulls down, removes, injures or defaces any pillar, post or stake fixed in the ground or any notice or other matter put up inscribed or placed, by or under the authority of the Board, or
57 58

Indian Penal Code, 1860, Section 277, Water (Prevention and Control of Pollution) Act, 1974, Section 41(1) as amended in 1988. 59 Ibid. 60 Ibid., Section 41(2), Further sub section (3) of the said section provides for a minimum punishment of two years, which may extend to seven years and with fine if the failure mentioned under subsection (2) continues beyond one year after conviction,

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(ii) obstructs any person acting under the orders or directions of the Board from exercising his powers and performing his functions under this Act, or (iii) damages any works or property belonging to the Board, or (iv) fails to furnish to any officer or other employee of the Board any information required by him for the purpose of this Act, or (v) fails to intimate the occurrence of any accident or other unforeseen act or event under section 31 to the Board and other authorities or agencies as required by that section, or (vi) in giving any information which he is required to give under this Act, knowingly or willfully makes a statement which is false in any material particular, or (vii) for the purpose of obtaining any consent under section 25 or section 26, knowingly or willfully makes a statement which is false in any material particular. Strict penalties are also provided for violating the provisions of sections 24,25 and 26 which provide for fixation of standards, restriction on new outlets and new discharge and reference to the existing discharge of sewage or trade effluents respectively. The punishment prescribed for such an offence is imprisonment for a period not less than one year and six months which may extend upto six years and with fine.61 For every subsequent conviction, there is provision for an enhanced penalty of imprisonment for a minimum of two years which may be extended to seven year and with fine. 62 Further as per the new provision, section 45A inserted into the Act in the year 1988 by an Amendment, there is a provision for punishment if no penalty has elsewhere been prescribed by the Act, for contravention of any of the provisions of the Act or failure to comply with any order or direction given under the Act. The punishment for such contravention or failure to comply with the direction is imprisonment which may extend to three months or with fine which may extend to ten thousand rupees or with both, and in case of a continuing failure, an additional fine can be imposed which may extend to five thousand rupees for every day during which such contravention or failure continues after conviction for the first such contravention or failure. However, the question "whether the enhanced penalty the only solution for suffering of environmental degradation" still remains unanswered. The fines thus imposed lack the deterrent value as compared to the harm and suffering being inflicted upon the general public. Moreover, imprisonment, as a punishment is not mandatory in all the cases. It may be worthwhile to mention that if any person 'knowingly' violates the provisions of the Act, he will attract the penalty for such violations.63 Furthermore, the onus of proof and the

61 62

Water (Prevention and Control of Pollution) Act, 1974, Section 43 & 44 as amended in 1988. Ibid., Section 45 as amended in 1988. 63 In this connection provision contained in section 24 of the Act may be seen.

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quantum of evidence required for conviction does not find a clear mention in the Act.64 Thus, there is no clear cut mechanism to face and prevent the human suffering which is one of the biggest crimes of the present day society.

G. OFFENCES BY COMPANIES
Section 47 of the Act deals with the offences by companies. Sub section (1) of this section says that where an offence 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 will be held liable and punished accordingly. This sub-section provides that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act 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. Further as per the provision of sub-section (2) of this Section, not- withstanding 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 shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. For the purpose of this section "company” meansanybody corporate, and includes a firm or other association of individuals; and "director” in relation to a firm means a partner in the firm. In Uttar PradeshPollution Control Boardv. Modi Distillery,65the Supreme Court reversed an order quashing a prosecution under section 44 of the Act. In the instant case the State Board initiated the prosecution under section 47 of the Act against a company and its corporate officials, for contravention of the provisions of Sections 25(1) and 26. But while drafting the complaint, the name of the unit (Mz'sModi Distillery) was wrongly named instead of the company Modi Industries Limited which owned the unit. The learned single judge quashed the complaint on this ground saying that the corporate officials cannot be prosecuted unless there was a prosecution of the company. In an appeal the Supreme Court opined that the infirmity in the complaint could easily be removed by having the matter remitted to the Trial Court with the direction to call upon the appellant to make a formal amendment of the complaint so as to make the controlling company figure as the concerned accused in the complaint. In this connection the apex Court made its intentions clear when it opined, "It would be a travesty of justice if the big business house of M/ s. Modi Industries Limited is allowed to defeat the prosecution launched and avoid
64 65

Bharat Desai, "Water Pollutionin India", Lancer Books, 1990 at p. 55. AIR 1988 SC 1128.

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facing the trial on a technical flaw which is not incurable for their alleged deliberate and wilful breach of the provisions contained in sections 25(1) and 26.......".66 While section 47 deals with the offences by companies, section 48 of the Act speaks about the offences by Government Department. Thus, as per the provision of this section where an offence has been committed by any Department of Government, the head of the Department shall be deemed to be guilty of the offence and will be held liable. However, the head of such Department cannot be held guilty 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.

H. COGNIZANCE OF OFFENCES
Section 49 of the Act which deals with the cognizance of offences says that, no Court shall take cognizance of any offence under this Act except on a complaint made by(a) a Board or any officer authorised in this behalf by it; or (b) 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. Only the Court of Metropolitan Magistrate or a Judicial Magistrate of the First Class or any court superior to that can take the cognizance of the offence.

I. MISCELLANEOUS PROVISIONS
The Last chapter of the Act consisting of sections 51 to 64 deal with miscellaneous provisions of the Act. Under the provisions of this chapter, the Central Government or the State Governments as the case may be, may by notification in the official Gazette, establish Central Laboratory or the State Laboratories. The Central Government as well as the State Government may also, after consultation with the Central Board or the State Boards, respectively, make rules prescribing the functions of such Laboratories and the procedure for the submission to the said laboratories of samples of water or of sewage or trade effluent for analysis or tests, the form of the laboratory reported thereunder and the fees payable in respect of such report.67 The Act also provides for appointment of analysts.68report of analysts.69duty of local authorities to assist and render necessary help to the Board.70protection against the actions taken in good faith71 among other things. The Central Government as well as
66 67

Uttar Pradesh Pollution Control Board v. Modi Distillery, AIR 1988 SC 1128. Water (Prevention and Control of Pollution) Act, 1974, Ss 51 & 52. 68 Water (Prevention and Control of Pollution) Act, 1974, Section 53. 69 Ibid., Section 54. 70 Ibid., Section 55. 71 Ibid., Section 59.

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the State Government are empowered to supersede the Central Board, the Joint Board or the State Boards, as the case may be if these Boards persistently made default in the performance of the functions imposed on it by or under this Act; or if it felt that the circumstance that exists which render it necessary in the public interest to do so.72 Further, the Central Government and also the State Government are empowered by virtue of section 63 and section 64 respectively to make rules. 73 Sub section (1) of section 63 says that the Central Government may, simultaneously with the constitution of the Central Board make rules while the sub-section (2) specifies the matters in respect of which such rules can be made. Similarly section 64(1) provides that the State Government may, simultaneously with the constitution of the State Board, make rules to carry out the purposes of this Act in respect of matters not falling within the purview of section 63. Sub section (2) of this section deals with the matters which such rules may provide. (i) Power of Central Government to make rules: 1. The Central Government may, simultaneously with the constitution of the Central Board, make rules in respect of the matters specified in sub- section (2); Provided that when the Central Board has been constituted, no such rule shall be made, varied, amended or repealed without consulting the Board. 2. In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: (a) the terms and conditions of service of the members (other than the Chairman and Member Secretary) of the Central Board under sub- section (8) of section 5; (b) the intervals and the time and place at which meeting of the Central Board or of any committe thereof constituted under this Act, shall be held and the protedure to be followed at such meeting, including the quorum necessary for the transaction of business under section 8, and under sub-section (2) of section 9; (c) the fees and allowance to be paid to such members of a committee of the Central Board as are not members of the Board under sub- section (3) of section 9; (d) the manner in which and the purpose for which persons may be associated with the Central Board under sub-section (1) of section 10 and the fees and allowances payable to such persons;

72 73

Ibid., Section 61 & 62. In pursuant to the power conferred on the Central Government by section 63 of the Act, the Water (Prevention and Control of Pollution) Rules, 1975 and the Water Pollution (Procedure for Transaction of Business) Rules, 1975 have been framed. Various State Governments also have framed rules as empowered by Section 64 of the Act

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(e) the terms and conditions of service of the Chairman- and the Member-Secretary of the Central Board under sub-section (9) of section 5 and under sub-section (1) of section 12; (f) conditions subject to which a person may be appointed as a consulting engineer to the Central Board under sub-section (4) of section 12; (g) the powers and duties to be exercised and performed by the chairman and the member-secretary of the Central Board; (h) the form of the report of the Central Board analyst under subsection (1) of section 22; (i) the form of the report of the Government analyst under sub-section (3) of section 22; (j) the form of the report of the Government analyst under sub-section (3) of section 22; (k) the form of application for the consent of the State Board under subsection (2) of section 25, and the particulars it may contain; (1) the manner in which inquiry under sub-section (3) of section 25 may be made in respect of an application for obtaining consent of the State Board and the matters to be taken into account in granting or refusing such consent; (m) the form and manner in which appeals may be filed, the fees payable in respect of such appeals and the procedure to be followed by the appellate authority in disposing of the appeals under sub- section (3) of section 28; (n) the form in which and the time within which the budget of the State Board may be prepared and forwarded to the State Government under section 38; . (nn) the form in which the annual report of the State Board may be prepared under section 39; (o) the form in which the accounts of the State Board may be maintained under sub-section (1) of section 40; (oo) the manner in which notice of intention to make a complaint shall be given to the State Board or officer authorised by it under section 49; (p) any other matter which has to be, or may be, prescribed.

WATER POLLUTION - SOME SELECTED DECISIONS.
Taking into consideration the factors that are responsible for water pollution and the possible consequences thereof, our judiciary, both the apex Court and High Courts of various states have given various landmark judgments pertaining to water pollution. Some of the important judgements pronounced by various courts are discussed below.

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1. Kanpur Tanneries case
This case is one of the famous Ganga Pollution cases delivered by the Supreme Court. One activist lawyer M.C. Mehta filed a writ petition under Article 32 of the Constitution under the head M.C. Mehta v. Union of India74where it was brought to the notice of the Court that a group of tanneries doing business on the bank of river Ganga were polluting the river by discharging effluents into the river without proper primary and secondary treatment of water. In this writ petition while highlighting the Kanpur Municipality's failure to prevent waste water from polluting the river Ganga, asked the Court to order Governmental authorities and tanneries at Jajmau near Kanpur to stop polluting the river. The court while ordering the closure of tanneries opined: "Water is the most important of the elements of nature. River valleys have been the cradles of civilization from the beginning of the world. Aryan civilization grew around the towns and villages on the banks of the river Ganga. Varanasi which is one of the cities on the banks of the river Ganga is considered to be one of the oldest human settlements in the world. It is the popular belief that the River Ganga is the purifier of all but we are now led to the situation that action has to be taken to prevent the pollution of water of the river Ganga since we have reached a stage that any further pollution of the river water is likely to lead to catastrophe. There are today large towns inhabited by millions of people on the banks of the river Ganga. There are also large industries on its banks. Sewage of the towns and cities on the banks of the river and the trade effluents of the factories and other industries 'are continuously being discharged into the river. It is the complaint of the petitioner that neither the government nor the people are giving adequate attention to stop the pollution of the river Ganga. Steps have, therefore, to be taken for the purpose of protecting the cleanliness of the stream in the river Ga'11ag, which is in fact the life sustainer of a large part of northern India."75 Thus, expressing the above opinion, the court was of the view that "the financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its worker cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effect on the public at large which is likely to ensue by the discharging of the trade effluents from the tannery to the river Ganga would be immense and it will outweigh any inconvenience that may be caused to the management and the labour employed by it on account of its closure.76

74 75

AIR 1988 SC 1037 Ibid., at p. 1038. 76 M.C. Mehta v. Union of India, AIR 1988 SC 1037 at p. 1045.

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2. The Municipalities Case
In another Ganga pollution case namelyM.C. Mehta v.Union of India77involving the same Kanpur city, it was alleged that the Municipal authorities have failed to obey their statutory duties for several years on account of which the water in the river Ganga at Kanpur has become so much polluted that it can no longer be used by the people either for drinking or for bathing. Dealing with the duties of the Nagarpalika in this case the Court while observing that the petitioner is a person interested in protecting the lives of the people who make use of the water flowing in the river Ganga and his right to maintain the petition cannot be disputed, opined that the nuisance caused by the pollution of the river Ganga is a public nuisance, which is widespread in range and indiscriminate in its effect and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large. Taking into consideration the statutory duties of the municipalities as contained in various legislations of the State of Uttar Pradesh, the Supreme Court expressed its dissatisfaction over the performanceof the Board constituted under the Water Act and the municipalities while carrying on its duties and opined that the Nagar Mahapaika of Kanpur has to bear the major responsibility for the pollution of the river near Kanpur. Accordingly the court issued certain guidelines to the Nagar Mahapalika, the State Government and the Central Government to takenecessary and immediate steps in this direction.78 The guidelines include certain directions for having adequate provision for the treatment of trade effluents flowing out of factories, certain actions by the municipality to prevent defecation, to arouse consciousness among the people about the cleanliness of the environment etc. Further the court ordered all the Municipalities and Mahapalikas which have jurisdiction over the areas through which the river Ganga flows to take steps to prevent the pollution of the river Ganga.79

3. Pollution of River Kathajori
River Kathajori is one of the major rivers of the State of Orissa and a large number of people, majority of whom belong to the thousand year old city Cuttack depend heavily on its water for drinking, bathing and other domestic uses. But the river water has been polluted by the Cuttack Municipality and the S.C.B. Medical College and Hospital, the Premier Hospital of the State and other urban wastes making the situation horrible. Likewise, the storm water drain which was constructed in the city for the purpose of discharge of excess water during heavy rains into the river Kathajori to avoid water stagnation remains full throughout the year and sewage water from various parts of the city goes into it and consequently into the river further aggravating the problem. So also, the Taladanda Canal which passes through the city on which thousands of people depend for their daily needs is also highly polluted. In order to save the people from pollution hazards and to protect the health of thousands of innocent people living in and around
77 78

AIR 1988 SC 1115. Ibid., at pp 1126 - 1128. 79 Ibid., at p 1128.

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Cuttack city, a writ petition80 under Article 226 of the Constitution was filed alleging violation of not only Article 21 of the Constitution of India but also the National Health Policy, the Environment (Protection) Act and the Water Act. Equating the case with that of Ratlam81 the Orissa High Court observed; "we are left wondering whether our municipal bodies and Government departments are functional irrelevances, banes rather than boons and lowless' by long neglect. A responsible Municipal Council is constituted for the precise purpose of preserving public health. Provision of proper drainage system in working condition cannot be avoided by pleading financial inability. Article 51A(g) mandates compassion for living creatures. Why is it lacking in them whose primary function is to protect?”82 Taking serious note of the issues the court further observed that "the authorities should wake up before the matter slips out of their hands" since health of large number of people are at stake and also directed to take immediate steps in constituting a committee and such other functionaries and authorities as the State may feel necessary to consider the report relating to pollution load and take necessary steps to prevent and control water pollution and to maintain wholesomeness of water which is supplied for human consumption.83 Further ways and means to prevent entry of sewage water and effluents to rivers Mahanadi, Kathajori and Taldanda canal should be worked out, and also storm water drain may be operated in such a manner as to prevent entry of sewage water through it to the rivers.

4. Intervention by the apex Court
In a social action litigation namely Indian Council for Eliviro-legal Action v. Union of India84 filed on behalf of the villages of Bichhri whose right to life, as elucidated by Supreme Court in several decisions is invaded and seriously infringed by the respondents as is established by the various reports, the Supreme Court observed that "if it finds that the said authorities have not taken the action required of them by law and that their inaction is jeopardizing the right to life of the citizens of this country or of any section thereof, it is the duty of the Supreme Court to intervene”.85 If it is found that the respondents are flouting the provisions of law and the directions and orders issued by the lawful authorities, Supreme Court can certainly make appropriate directions to ensure compliance with law and lawful directions made thereunder. Declaring this the Supreme Court further observed that "if an industry is established without obtaining the requisite permission
80 81

M.C. Mehta v. State a/Orissa, AIR 1992 Orissa 225. Municipal Council, RatlarnvsVardichand, AIR 1980 SC 1622 82 Supra note 96, at p. 231. 83 Ibid., at p. 232. 84 1996) 3 see 212. 85 Indian Council for Enviro-legal Action v. Union of India, (1996) 3 sce 212 at p. 238.

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and clearances and if the industry is continued to be run in blatant disregard of law to the detriment of life and liberty of the citizens living in the vicinity, can it be suggested with any medium of reasonableness that Supreme Court has no power to intervene and protect the fundamental right to life and liberty of the citizens of this country.86

5. Doctrine of Public Trust
In M.C. Mehta v. Kamal Nath,87the Supreme Court, declared that the Public trust doctrine as developed by the ancient Roman Empire is a part of the law of the land and the natural resources which are meant for public use cannot be converted into private ownership. In the present case, large area on the bank of the River Beas which is part of the protected forest has been given on a lease by the Himachal Pradesh Government purely for commercial purposes to the Motels. River Beas which is a young and dynamic river and is considered to be ecologically fragile. This scenic and beautiful riverside should not have been permitted to be converted into private ownership and for chimerical gains on the notion being that the public has a right to expect certain lands and natural areas to retain their natural characteristic. Thus taking into consideration all these, the Supreme Court observed that "we have no hesitation in holding that the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel Management.88The Court opined that "Our legal system-based on English common law-includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership”.89 Thus, holding the above view, the Supreme Court directed that "the doctrine of public trust as discussed by us in the judgement is a part of the law of the land" and cancelling the lease granted to the Motel, set it aside and also asked the Government of Himachal Pradesh to take over the area and restore it to its original-natural conditions. Further the Court asked the Motel to pay compensation by way of cost for the restitution of the environment and ecology of the area. The pollution caused by various constructions made by the Motel in the riverbed and the banks of River Beas has to be removed and reversed.90

86 87

Ibid. (1997) 1 sec 388. 88 Ibid., at p. 413. 89 Ibid. 90 M.C. Mehta v. Kamal Nath, (1997) 1 see 388 at p. 415.

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6. Calcutta Tanneries Case
While monitoring the various directions issued by it in the Kanpur Tanneries91case as discussed above, the Supreme Court enlarged the scope of the petition and industries located in various cities on the banks of River Ganga were called upon to stop discharging untreated effluent into the river. In the process, the four tannery clusters operating on the eastern fringe of the city of Calcutta which accommodate about 550 tanneries came up for discussion in which it was alleged that these Calcutta tanneries have all along been operating in extremely unhygienic conditions and are discharging highly toxic effluents all. over the area. According to an examination report prepared by the National Environmental Engineering Research Institute (NEERI), ninety percent of he Calcutta tanneries use chrome-based tanning process, while the remaining utilize vegetable tanning process. The report also mentioned that "no appropriate waste water drainage and collection systems are available in any of the tannery clusters. The untreated waste water flows through open drains causing serious environmental health and hygiene problems. Also, no waste water treatment facilities exist in any of the four tannery clusters". The report further said that the tannery units are located in highly congested habitations, offering little or no scope for future expansion, modernization or installation of effluent treatment plants. Tannery units are located in thickly populated residential areas. Thus, seeing no alternate these tanneries were asked to relocate their units in a new complex and accordingly all sorts of help were extended to them. Closure orders also couldnot be passed as they pleaded before the court to shift to the new complex which they did not. The court also examined the possibility of setting up common effluent treatment plant at the existing areas where the tanneries are operating. NEERI after thorough inspection came to the conclusion that such a proposal is not tenable by observingthat the proposed schemes are neither scientifically sound, nor can be constructed on the existing locations without interfering with the normal life of the residents in the said areas'. Taking into consideration the categorical findings of NEERI and also several reports by the Board, the Supreme Court in its judgment held that the Calcutta tanneries shall have to be relocated from their present locations and shift to the new leather complex set up by the West Bengal Government and the tanneries which decline to relocate shall not be permitted to function at the present sites. 92 The order also said that the State Government in consultation with the expert bodies like NEERI, Central Pollution Control Board and the Board shall frame scheme /schemes for reversing the damage caused to the ecology and environment by pollution.

91 92

Supra note 90. M.C. Mehta v. Union of India, (1997) 2 see 411 at P. 430-431.

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7. Badkhaland Surajkund Lakes case
Besides the' river water, the water of ponds and lakes are also getting polluted. Most of the ponds and lakes are of historical importance to us and they are associated with us and are considered as an integral part of our social fabric and social life. In the present instance, Badhkal Lake and the Surajkund Lake .in the State of Haryana were intended to be preserved from pollution as these two lakes areof tourist importance. Therefore, in M.C. Mehta v. Union of India93where the matter of protecting these two lakes came up, the Supreme Court taking into consideration the reports of the Central Pollution Control Board and the National Environmental Engineering Research Institute, felt that these two expert reports leave no doubt that the large-scale construction activity in the close vicinity of the two lakes is bound to cause adverse impact on the local ecology. NEERI in its report said that the "Surajkund Lake impounds water from rain and natural springs while the Badhkal Lake is an impoundment formed due to the construction of an earthen dam. Badhkal Lake and the Surajkund Lake are monsoon fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large scale construction in the vicinity of these tourist resorts may disturb the rain water drains which in turn may badly affect the water level as well as the water quality of these water bodies. The mining may also cause fractures and cracks in the subsurface, rock layer causing disturbance to the aquifers which are the source' of ground water. The hydrology of the area may also be disturbed”.94 Thus, in order to preserve the environmentand control pollution, the Court came to the conclusion that "we have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes''.

93 94

(1997) 3 see 715. The report is cited in the case.

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BIBLIOGRAPHY
Books Referred
Nanda.K.sukanta., Environmental Law,1st Edition,2007,Central Law Publications, Allahabad. Leelakrishnan. P.,Environmental Law in India,3rd Edition,2008,Lexis Nexis India. Tiwari.A.K., Environmental Laws in India, 4th Edition, 2006, Deep & Deep Publications, New Delhi. Mehta, S. Chetan., Environmental Protection and the Law,2nd Edition,2009, A P H Publication, New Delhi.

Websites Referred http://www.environmentallawsofindia.com/the-environment-definitions-andacts.html https://www.elaw.org/node/1917 http://www.indiawaterportal.org/articles/policies-and-laws-related-water-bodieswater-pollution-and-regulation-collection

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