ENVIRONMENTAL LAW

Assignment on

The Water (Prevention and Control of pollution ) Act 1974 and

Supreme Court.

Submitted by
NILOTPAL
Roll Number: 36
B.A. LL.B. (Hons.)
VIII Semester
Batch: 2016-21
Session: 2019-20

Of Law School,
Banaras Hindu University, Varanasi.

Under the guidance of

DR.ANURAG AGRAWAL
 ACKNOWLEDGEMENT
I would like to take this opportunity to express my sincere and
profound gratitude to my guide and mentor for this subject Dr.
Anurag Agrawal for his guidance and constant encouragement
throughout the course of my work. He gladly accepted all the
pains in going through my work, and participated in enlightening
and motivating discussions, which were extremely helpful.

I humbly extend my words of gratitude to other faculty members,

teachers and administration of the department for promising me
the valuable help and time whenever it was required.

I would like to express my deepest sense of appreciation to my

family members and mates for their constant encouragement and
support, and finally thanks to the almighty strength which
inspired and continues to inspire me greatly.
 INDEX

S.No. TOPIC Page No.

1 Introduction 01
2 The Water (Prevention and Control of 02-22
pollution ) Act 1974 and Supreme Court
3 Conclusion 23
4 Bibliography 24
 TABLE OF CASES

1) Techi Tagi Tara v Rajendra Singh Bhandari

2) M.C.Mehta v. Union of India
3) Mahavir Soap and Godakhu Factory v. Union of India
4)A.P. Pollution Control Board v. M.V. Nayudu1

5) K.C.P. Sugar & Industries Corpn. Ltd. Govt. of A.P.

1
(1999) z SCC 718: AIR 1999 SC 812, 823; again in A.P. Pollution Control Board (2) v. Prof. M.V. Nayudu, (200I) 2.
SCC 62.
INTRODUCTION

Water is the most important element for human life. The crucial problem before us
at present is not whether developing countries can afford measures for control of
water pollution but is whether they can afford to neglect them. Pollution of water is
one of the major problems facing the humanity. There are various factors causing
water pollution. Industrial effluent directly entering into a stream or through a
municipal sewer or through a discharge on land meant for irrigation results in water
pollution. However, the major source of water pollution is community wastes from
human settlements. Most of these wastes are discharged untreated into the water
courses. Things stored on land, such as raw material, solid refuse of a mine or quarry
on land may cause pollution by rain, washing it into a stream. Moreover, air pollutant
may also cause water pollution. In addition to all this, the use of pesticides for
agriculture also results in water pollution due to rain water washing it into a stream.

The ground water also gets polluted as a result of trade or sewage effluent. The
seepage of percolation of the human waste from the land due to improperly
constructed or improperly placed septic tanks or leaking sewer lines also pollute
ground water.

Encyclopaedia of Environmental Pollution and Controls2 has enumerated following

sources of water pollution:

(i)Domestic Water Pollution, (ii) Industrial Water Pollution, (iii) Agricultural Water
Pollution, (iv) Solid Waste Pollution, (v) Thermal Pollution, (vi) Shipping Water
Pollution, (vii) Radioactive Water Pollution.

2
G.R. Chhatwal, Encyclopaedia of Environmental Pollution and Control, Vol H, 1990, p. 138. [160]
 THE WATER (PREVENTION AND CONTROL OF
POLLUTION) ACT, 1947

The Water (Prevention and Control of Pollution) Act, 1974 has been enacted for the
purpose of prevention and control of water pollution. “It came into being at a time
when the country had already prepared itself for industrialization and urbanization.
The need was keenly felt for the treatment of domestic and industrial effluents,
before they were discharged into rivers and streams.” The availability of clean
drinking water was becoming a rare phenomenon due to unrestricted and ever
growing pollution of streams, rivers and other water sources. It was therefore,
expedient to provide for the prevention and control of water pollution and the
maintaining or restoring of the wholesomeness of water. In order to achieve this
object the Water (Prevention and Control of Pollution) Act, 1974 provides for the
establishment of Central and State Pollution Control Boards and enumerates the
powers and functions of such Boards.3

The Water (Prevention and Control of Pollution) Act, 1974 represents India’s first
real attempt to comprehensively deal with an environmental issue. Water is a subject
mentioned in Entry 17, List II of the Seventh Schedule, i.e. a State subject. Thus the
Union Government had to enact the Water (Prevention and Control of Pollution)
Act, 1974 under the provisions of article 252(1) of the Constitution, which permits
the Central Government to enact laws on subjects exclusively within state domain,
if it can garner consent from two or more states.4

The Water (Prevention and Control of Pollution) Act, 1974 states:

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.

3
A.K.Tiwari, Environmental Laws in India, Deep and Deep Publishers, New Delhi, 2006, p.59.
4
Shravya K.Reddy, Water Pollution and The Law, Indian Judicial Review, Vol.1,2004, p.194.
The statement of objects and reasons of the Water (Prevention and Control of
Pollution) Act, 1974 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.

Chapter II of the Water (Prevention and Control of Pollution) Act, 1974 deals with
the constitution of Central board, State Boards and their functions. According to
Section 3 of the Water (Prevention and Control of Pollution) Act, 1974, the Central
Board is constituted by the Central Government and is called Central Pollution
Control Board. The Central Board shall be considered as a body corporate having
perpetual succession with the power to acquire, hold and dispose of property.
According to Section 3(3) of the Water (Prevention and Control of Pollution) Act,
1974, it can also enter into contract with any person or party. It can sue or be sued
in the name of Central Board.5

According to Section 4, the State Boards shall be constituted by the State

Government and it shall be called as State Pollution Control Board. Every State
Board shall be considered as a body corporate having perpetual succession with the
power to acquire, hold and dispose of property. It can also enter into contract with
any person or party. It can sue or be sued in the name of State Boards.

According to Section 4(4) of the Water (Prevention and Control of Pollution) Act,
1974, no State Board shall be constituted for a Union Territory. In relation to a Union
Territory, the Central Board shall exercise the powers and perform the functions of
a State Board for the Union Territory. The Central Board, in relation to any Union
Territory, may also delegate any of its functions to such a person or body of persons
as the Central Government specify.

Several provisions are incorporated in the Water (Prevention and Control of

Pollution) Act, 1974, which empowered the central pollution control board and state
pollution control board for the prevention and control of water pollution.

Chapter IV deals with the powers and functions of the Central Pollution Control
Board and State Pollution Control Board. Section 16 of the Water (Prevention and
Control of Pollution) Act, 1974, deals with the function of Central Pollution Control

5
P.S.Jaswal And Nishtha Jaswal, Environmental Law, Allahabad Law Agency, Faridabad, Third Edition, 2009,p.201.
Board whereas section 17 deals with the powers and functions of State Pollution
Control Board.

Chapter V deals with prevention and control of water pollution. Section 19 deals
with power of state government to restrict application of Act to certain areas. Section
20, 21 and 23 deals with power to obtain information, take samples of effluents,
entry and inspect respectively. Section 28 and 29 deals with appeal and revision.

Chapter V deals with Funds, Accounts and Audits. And Chapter VII deals with
Penalties and Procedure.
HISTORY
In June 1972 at UN Confrence on the Human Environment held in Stockholm gave
rise to environmental law. The attention of Central Government was drawn towards
the problem of water pollution during 1960's decade. The Health, Ministry of Central
Government constituted an Expert Committee to make suggestions for making law
to prevent and control water pollution. The Committee made recommendation to the
Central and State Government to make law on this subject. Accordingly, the Central
Committee of Self-Government met on September 7, 1963 to consider the matter. A
resolution was passed by the Committee that the Central Government may make law
to bring uniformity in the prevention and control of water pollution.

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" being a "State
Subject," the Parliament can exercise the power to legislate on "water" only under
Articles 249 and 252 of the Constitution. In pursuance of Article 252 (1) of the
Constitution, resolutions were passed by all the Houses of the Legislatures of the
States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir,
Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal to the
effect that matters relating to prevention and control of water pollution should be
regulated by the Parliament by law. Bill having passed been passed by both the
houses of Parliament received the assent of the President on 23rd March 1974 and
come into force on 23rd March 1974. Accordingly, the Parliament enacted the Water
(Prevention and Control of Pollution) Act, 1974 which was amended in 1988.

OBJECT OF THE ACT

The purpose of the legislation is not only the prevention and control of water
pollution but also the maintenance and restoration of the of water. This legislative
measure is designed to tackle one facet of environmental pollution. Its main
objectives are:

(i) To provide for the prevention and control of water pollution and
maintaining or restoring of wholesomeness of water;
 (ii) (ii) To establish Central and State Boards for the prevention and control of
Water Pollution;
(iii) (iii) TO provide for conferring 00 and assigning to such Boards powers
and functions relating thereto and for matters connected therewith;
(iv) (iv) To provide penalties for contravention of provisions of the Act; and
(v) To establish Central and State water testing laboratories to enable the
Board to assess the extent of pollution, lay down standards and establish
guilt or default.
As regards other States, they may adopt this particular Act by passing a resolution
under Article 252 (1) of the Constitution. In order to remove administrative and
practical difficulties that emerged over the years after the enforcement of the Act,
many of the provisions were amended by the Water (Prevention and Control of
Pollution) Amendment Act, 1988.

Definitions

Section 2 (e) of the Act defines pollution as follows:

"Pollution" means such contamination of water or such alteration of physical,

chemical or biological properties of water or such discharge of any sewage or trade
effluent or of any liquid, gaseous or solid substance into water (whether directly or
indirectly) as may or is likely to, create a nuisance or render such water harmful or
injurious to public health or safety, or to domestic, comfnercial, industrial,
agricultural or other legitimate uses, or 'to the life and health of animals or plants or
of aquatic organism.

Under the Water Act, pollution is, thus, considered a nuisance or an evil that harms
public health. Moreover, definition is very wide and effort has been made to include
each and every act which is or is likely to prove injurious to health not only of human
beings but also of animals, plants or aquatic organism. In addition, if water is unfit
for domestic, commercial, industrial, agricultural or other legitimate uses, it shall be
deemed to be polluted.

"State Government," according to Section 2 (i), in relation to a Union territory means

the Administrator thereof appointed under Article 239 of the Constitution.
 ROLE OF STATE GOVERNMENT

Constitution of State Boards.—Section 4

The State Government shall with effect from such date, as it may deem fit, by
notification in the Official Gazette, appoint, constitute a State Pollution Control
Board under such name as may be specified in the notification to exercise the powers
conferred on and perform the functions assigned to that Board under the Act.

State Government is empowered to constitute “ State Pollution Control Board

(SPCB)” which shall consist of 17 member nominated by state government as
follows - a chairmain, 5 officials representing government, 5 members from local
authority, 3 members representing interest of agriculture, fishery, or industry or trade
or any other interest which, in the opinion of the State Government ought to be
represented, two persons to represent companies or corporations owned, controlled
or managed by the State Government and a full time member-secretary.

Referring to this decision in Techi Tagi Tara v Rajendra Singh Bhandari,6 the
Supreme Court went to the wider dimensions of the essential criteria for selection
and nominations of the boards, through), the court held the view that NGT did not
have the power to issue the direction of the kind.' In order to drive home the need
for expert representation, the court surveyed several reports, studies and
communications that stressed the need to strengthen the state pollution control
boards and union territory pollution control committee.' The sum and substance of
these reports were that state governments should not interfere with recruitment
policies of the state boards which should be equipped with more and better trained
engineering and scientific staff. The boards should be given statutory independence
and functional autonomy and should be protected free from political interference.
The chairpersons' should be individuals with vision.

They should be capable of understanding the complexity of modern science and

technology since they will be dealing with highly technical issues. They must have

6
2017(2) SCALE 39.
an understanding of' law, fully involved in the task of environment construction and
planning. Both chairpersons and secretary should he appointed on full-time basis.
The secretary should be fully qualified. Other members should also he people with
adequate in the scientific, technical or legal background from the environmental
field. However the practice that members are increasingly appointed for political
purposes leading to ineffective functioning of the board. The expert studies seem to
have had no impact. The scenario was alarming. Central Government, time and
again, requested the States to appoint persons who could add value and stature to the
State boards by their very presence and could utilise their expertise in preserving and
protecting the environment, including air and water. There are States which had no
rules for several years but worked with rules mechanically adopted from another
State without an objective examination of the varying conditions of the two States.
In one State the Chairman claiming to be a politico-social worker did not have any
educational qualification or any knowledge about pollution control.

Section 5(3) of the act state a member of a Board may be removed before expiry of
his term of office either by the Central Government or by the State Government as
the case may be after giving him a reasonable opportunity of showing cause against
him.

Power to Give Directions (Section 18)

Every State Board shall be bound by such directions in writing as the Central
Board or the State Govt. may give to it. Provided where a direction given by the
State Govt. is inconsistent with the direction by the Central Board the
matter shall be referred to the Central Govt. for its decision.

Power of State Government to Restrict the Application of the Act in Certain

Area (Section 19)

The State Government in consultation with or on recommendation of the State

Board, may, by notification, restrict the application of the Act for certain area(s).
The provisions of the Act shall apply to such declared area(s) only. Such
order/notification can be altered or modified by the State Government.
But this section did not enable the State to grant exemption to a particular industry
in a prohibited area for location of a polluting industry. Exercise of such power is
violative of the right to clean water under Article 21 of the Indian Constitution.7

The Supreme Court in M.C.Mehta v. Union of India8, held that financial capacity
of the ternaries is not a relevant consideration while requiring them to setup primary
treatment plants. A tannery which cannot setup a primary treatment plant cannot be
granted consent by the State Pollution Control Board to continue its existence.

In Mahavir Soap and Godakhu Factory v. Union of India,9 the State Pollution
Control Board refused consent to the continuation of the factory in thickly populated
area on the public complaint. Held, it was a genuine reason for refusal to grant
consent and the Court had no reason to substitute its opinion in place of State
Pollution Control Board’s decision.

Appeal (Section 28)

Any person aggrieved by such order of the Board can appeal against the order of the
Board to the appellate "authority constituted by the state Government. The appeal
should be made within a period of 30 days fry, the date on which such order is
communicated to him. After giving an opportunity of being heard, to the appellant,
the appellate authority Can dispose of the appeal; and while deciding the appeal it
can 1)annul any condition, or 2) substitute any condition.

Explaining the position regarding the "authority" under this section, the Supreme
Court clarified and suggested to make necessary amendment in the statute in A.P.
Pollution Control Board v. M.V. Nayudu10 as follows:

There is also an immediate need that in all the States and Union Territories, the
appellate authorities under Section 28 of the Water (Prevention and Control of
Pollution) Act, 1974 and Section 31 of the Air (Prevention and Control of Pollution)
Act, 1981 or other rules there is always a judge of the High Court, sitting or retired,
and a scientist or group of scientists of high ranking and experience, to help in the

7
A.P. Pollution Control Board (2) v. Prof. M.V. Nayudu, (zoo1) z SCC 61.
8
AIR 1988 SC 1037 (1045).
9
AIR 1995 Orissa 218.
10
(1999) z SCC 718: AIR 1999 SC 812, 823; again in A.P. Pollution Control Board (2) v. Prof. M.V. Nayudu, (200I) 2.
SCC 62.
adjudication of disputes relating to the environment and pollution. An amendment
to existing notifications under these Acts can be made for the present. [The court
also suggested:] As stated earlier, the Government of India should, in our opinion,
bring about appropriate amendments in the environ-mental statutes, rules and
notifications to ensure that in all environmental courts, tribunals and appellate
authorities, there is always a Judge of the rank of a High Court Judge or a Supreme
Court Jude,—sitting or retired—and a scientist or group of scientists of high ranking
and experience so as to help a proper and fair adjudication of disputes relating to
environment and pollution.

The Supreme Court further held that technical matters—their scientific and technical
aspects—can be referred to expert bodies having judicial and technical expertise. In
this matter, the Supreme Court referred to the appellate authority under the National
Environment Appellate Authority Act, 1997.

Revision (Section 29)

The State Government may at any time, either on its own or on an application, call
for records of any case where an order has been made by the State Board under
Sections 25, 26 and 27, for the purpose of satisfying itself as to the legality of any
such order. The State Government can pass any order in relation to that after
providing an opportunity of being heard to the Board, or the person affected. The
State Government shall not revise any order if an appeal against the order lies to the
"appellate authority".11 Revision is not a right guaranteed to the party but only a
power conferred on the State Government to keep an eye on the functioning of the
State Board.12

Contribution by State Government

The State Government may, after due appropriation made by the legislature, make
contribution to the SPCB each year to enable the Board to perform its functions
under the Act.

The State may also raise funds and may accept gifts, grants, donation, benefactions,
fees, etc. It may also, with the consent of the State Government, borrow money from

11
World Saviors v. Union Of India,(1998) 9 SCC 247.
12
Balkishan v. Union Of India, (1994) 3 SLJ 440 (CAT).
any source by way of loans, or issue of bonds, debentures or such other instrument"
as it may deem fit for the performance of its functions.

State Water Laboratory (Section 52)

Like Central Government the State Government may by notification in the Official
Gazette—

1(a) establish a State Water Laboratory; or

(b) specify any laboratory or institute as a State Water Laboratory to carry out the
functions entrusted to the State Water Laboratory under this Act.

2 The State Government may after consultation with the State Board make rules
prescribing—

(a) the functions of the State Water Laboratory;

(b) the procedure for the submission to the said laboratory of samples of water or of
sewage or trade effluent for analysis or test, the form of laboratory's report thereon
and the fee payable in respect of such report;

(c) such other matters as may be necessary or expedient to enable that Laboratory to
carry out its functions.

Analysts (Sub Section 2 of Section 53)

Section 53(2) empowers the State Government to appoint such persons as it thinks
fit by notification in the Official Gazette as Government analysts. They will have the
qualifications prescribed by the Government for the purpose of analysis of samples
of water or of sewage or trade effluent sent for analysis to any laboratory established
or specified under Section 51 (1). A Board analyst must also possess such
qualifications as prescribed.

Powers of State Government to supersede State Board (Section 62)

(1) If at any time the State Government is of opinion—

(a) that the State Board has persistently made default in the performance of the
functions imposed on it by or under this Act; or

(b) that circumstances exist which render it necessary in the public interest so to do,
the State Government may, by notification in the Official Gazette, supersede the
State Board for such period, not exceeding one year, as may he specified in the
notification:

Provided that before issuing a notification under this sub-section for the reasons
mentioned in clause (a) the State Government shall give a reasonable opportunity to
the State Board to show cause why it should not be superseded and shall consider
the explanations and objections, if any, of the State Board.

(2) Upon the publication of a notification under sub-section (1) superseding the State
Board, the provisions of sub-sections (z) and (3) of Section 61 shall apply in relation
to the supersession of the State Board as they apply in relation to the supersession of
the Central Board or a Joint Board by the Central Government.

Power of State Government to Make Rules (Section 64)

(1) 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:
Provided that when the State Board has been constituted, no such rule shall he made,
varied, amended or repealed without consulting that 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
the member-secretary) of the State Board under sub-section(8) of Section 5;

(b) the time and place of meetings of the State Board or of any committee of that
Board constituted under this Act and the procedure 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 allowances to be paid to such members of a committee of the State
Board as are not members of the Board under sub-section (3) of Section 9;

(d) the manner in which and the purposes for which persons may be associated with
the State Board under sub-section (1) of Section 10 and the fees and allowances
payable to such persons;

(e) the terms and conditions of service of the chairman and the member-secretary of
the State Board under sub-section (9) of Section 5 and under sub-section (I) of
Section 12;

(f) the conditions subject to which a person may be appointed as a con engineer to
the State Board under sub-section (4) of Section 12;

(g) the powers and duties to he exercised and discharged by the chairman and the
member-secretary of the State Board;

(h) the form of the notice referred to in Section 21;

(i) the form of the report of the State Board analyst under sub-section (1) 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 sub-section (2)
of Section 25, and the particulars it may contain;

(l) 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 he 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 pre-pared 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.

It is to be noted that these rules will have prospective effect and no rule made under
this section can have retrospective effect."

The Supreme Court in K.C.P. Sugar & Industries Corpn. Ltd. Govt. of A.P.13
upheld the powers of the State Government to issue order to enhance payment to
arrack distilleries that commissioned latent treatment plants, subject to production
of certification to that effect from the SPCB. It was resolved that the purpose of such
order appeared to be that said treatment plants in industries must be functional one
and that achieving required parameters of purity would entitle them enhanced price.

13
(2005) II SCC 544.
A CRITIQUE OF THE PROVISIONS

Powers and Functions

The discretion to give or not to give consent for discharge of trade effluents is vested
in the pollution control boards. No doubt, such a regulatory power is the most potent
weapon in the control of pollution. The power to withdraw consent when conditions
are violated is equally effective. However, the conglomeration of too many powers
in the board seems to reduce the significance of the consent-granting and consent-
withdrawing powers. A reading of the provisions in the Water Act shows that many
functions allotted to the boards are of a deliberative, advisory investigating and
research oriented nature.14 The power of the state pollution control board to make,
vary or revoke an order for prevention, control or abatement of water pollution,
includes an order relating to construction, modification, alteration, or extension of a
disposal system and remedial measures necessary to prevent, control or abate water
pollution. Other functions are indicated in the expressions, 'plan', `advice', 'collect
information', 'participate in investigation and research', 'inspect', lay down
standards', 'evolve method of treatment', 'advise government' and 'establish a
laboratory' All the amendment of the Act in the year 1988, the board could not
exercise coercive powers for bringing the delinquent to obedience, except in case of
an emergency. The question is whether the board with its institutional weakness and
functional inability could move ahead in an emergency. The 1988 Amendment
conferred on the board the over to ask for closure of any industry, operation or
process. Undoubtedly, this added new vigour and dynamism to the functioning of
the board and in more cases than one it has helped to avoid the situation where the
board had to wait for an order from magistrate's court for restraining a person .likely
to cause pollution. By issuing the and coercive directions, the board can take timely
and speedy action to check apprehending pollution. This power is to be exercised
subject to the provisions of the Water Act, and to any directions from the central
government.

14
Cochin University Law Review 1980, pp 141, 156.
Structure

The nature of representation of interests in the board raises a doubt as to whether the
board will be in a position to act in tune with the legislative expectations.
Manifestlye, the board is excessive official representation in the composition of the
board. One fails to see the rationale as to why an agency intended to make decisions
on water quality standards be staffed with interests such as agriculture, fishery,
industry or other interests. Public sector companies or corporations may themselves
be polluters or potential polluters. There is no reason why their representatives
should have a berth on the board. Doubts have also been raised as to whether the
board would be in a position to function effectively and in independently when it
takes decisions against the interests of the government. This is so because besides
complete control over its nominees, the government is at liberty to remove them
from office, disqualify them or even supersede the board. Such an overtly
indiscriminate action may be a remote possibility in a democratic country, where the
people are vigilant and the rule of law is respected. However, in the states of Punjab
and Haryana the board was superseded. Further, one may also doubt if the interest
representation in the board exerts undue influence instead of enabling the board to
solve the problems of pollution in an impartial manner. The decision whether
consent should be given and under what conditions it should be given is a matter that
warrants expert knowledge in the maintenance of the wholesomeness of water.
Experts can effectively help in the evolution of objective standards. The expertise
and experience essential for environmental decision-making are lacking in the
composition of the board as it is overshadowed with interest representation. This is
likely to make the board weaker when it finds itself in a difficult position to take and
implement independent decisions.

Procedure

An application for consent is deemed to have been granted unconditionally if nothing

is heard from the board within the period of four months of making the application.
In support of this legal fiction for deemed consent, the champions of ‘development’
may say that initiatives for new industries or for expansion of existing industries
should not be sacrificed on account of the inefficiency and lethargy of pollution
control agencies. This provision for deemed consent, prima facie biased in favour of
the polluters, is not in conformity with the need for tailoring environmental standards
at the design stage. However, when the board becomes grossly negligent and
neglects an application for consent for a long time, the genuine applicants will be
put to great disadvantage and difficulties if their projects are delayed.15 Avoidance
of this situation might have been the rationale behind the legal fiction. The position
stands in stark contrast to the British law, where in an identical situation, if nothing
is heard from the authority within three months, the application would he deemed to
have been refused.

Even though the state pollution control board imposes conditions on the nature and
composition, temperature, volume or rate of discharge of the effluents when it
grants consent, the members of the general public are not aware of these
conditions, as the register of conditions is not accessible to them unless they
procure the information under the Right to Information Act 2005. Perusal of such
register is restricted to the persons interested in, or affected by, an outlet of
effluents in the land or premises or to any other persons authorised by him in that
regard. However, under the British law, it is the duty of the consent granting
authority to make available the registers for inspection by the public free of charge,
at all reasonable hours, and to afford reasonable facilities for obtaining, on nominal
fees, copies of entries in the register. If the conditions are imposed to reduce the
ill-effects of discharge, there is no reason why the register is not open to the public,
Access to the register facilitates access to justice. Besides being an invincible check
against possible arbitrariness and discrimination on the part of the authorities,
access to the register will enable the public to compare the conditions imposed by
the board in identical cases and provide for vigilance against violation. It will render
members of the general public an opportunity to challenge the reasonableness of
the conditions before any judicial, administrative or democratic forum in an
effective and meaningful way.

15
Vijayanagar Education Trust v KSPC, Bangalore, AIR 2002 Kant 123.
Finally, it has to be noted that the Water Act does not provide for public
participation and impact study, before a decision to grant consent is taken. This is
an obvious lacuna in the law.

Non-active Involvement of Citizens

It important to note that the citizens have been explicitly excluded from legal
monitoring and enforcement action. Their public participation has been limited to
a few areas such as PILs; public hearings for ETA; and under Citizen's suits.
Somehow there is a feeling in from the public viewpoint that many post-Stockholm
statutes have connived in letting a polluter use legal loopholes and get away with
their environmental crimes. What underlines this opinion is the fact that citizens
are not allowed to present legal samples in a court of law.

A development of citizen's enforcement culture is therefore a very important step.

In the face of administrative inefficiencies in environmental investigations and law
enforcement, our present environment desperately needs citizen’s help. It is much
cheaper and more efficient to develop citizen's involvement in a fight against
environmental crimes. Certainly, any citizen would know what is going in their
locality. They can easily identify pollution situation and hence identify, a pollution
source. Citizens can work with the PCBs in obtaining documents on the suspect
industries under the rig of information provision: they can also check something is
being done about environmental problem in their locality. For achieving the
involvement of citizens in controlling environment degradation we have to start
from basics such as provide them knowledge about the issues, making them realise
that they are part of it and getting effected directly.
 CONCLUSION

It is clear from the account of various legal environmental aspects that pre-
Stockholm and post-Stockholm provisions are as much important when they are
mutually taken into account. There is need to improve penalties in common law
provision so that they can cope up with the impact of environmental crimes. Bar of
jurisdiction as laid down in water act should not be allowed to interfere with common
law. Right to know is very much important for environment justice. PILs still do not
entirely gives a citizen right to claim or compensation. Moreover, in India many
environmental lawyers were classified as pro bono.

The most important in the post-Stockholm statutes is the ability of citizen to pursue
environmental justice in various legal gateways one of which involving the inclusion
of government agencies in fighting the environmental crimes. Pollution control
boards have been given clear and visible powers to make sure that everyone should
comply with control, protection and preservation of environment. But it is also not
able to achieve its objective and very much effective.

Political involvement and non-participation of citizens are one of the main reason
that environment degradation is still making its way despite many taking many steps
in tackling this huge crisis.
 BIBLIOGRAPHY

Statute:
• The Water (Prevention and Control of Pollution) Act, 1974

Books:
• Leelakrishnan P, Environmental Law in India, (5th ed.), (2019), Lexis Nexis

• Shastri S.C., Environmental Law, (5th ed), (2017), Eastern Book Company

• Dr.Upadhayay J.J.R., (2nd ed), (2012), Central Law Agency