CENTRAL UNIVERSITY OF SOUTH BIHAR, GAYA -823001

School of Law and Governance

TOPIC : Different offences under Air and Water pollution and penalty thereof, with Important
case .

SUPERVISOR:

Dr. Mani Pratap sir.

(ASSISTANT PROFESSOR)

SubmittedBy:

Roushan Kumar

B.A. LLB (Hons.)

Sixth Semester (2018-23)

Enrollment ID: CUSB1813125083

 ACKNOWLEDGEMENT

Writing a project after a research is never an easy task to perform. It is one of the most
significant academic challenges. Though this project is presented by me yet there are various
other persons who remain in veil and gave all the possible support to complete this project. This
project is a result of hard work incorporated by immense dedication and moral support. I, hereby,
would like to first thanks to my professor Dr. Mani pratap sir who has given me an opportunity
to work on this specified project. Due to his support only, I have successfully completed this
project. Secondly, I would like to add a vote of thanks to my friends with whom I discussed the
problem and got to understand the right methodology to be adopted to accomplish the task.
Moreover, there have also been various other factors that helped me complete this paper. I ask to
forgive me for any mistakes in the paper. At last I wholeheartedly thank all those who have stood
there for me every time and supported me.

Thank You.

ROUSHAN KUMAR

6th semester

Enrollment no. – CUSB1813125083

INTRODUCTION

There are certain enactments having main objective of protecting the environment by prevention
and control of pollution. The Water (Prevention and Control of Pollution) ·Act, 1974, hereinafter
referred as the Water Act, is first such enactment in this category. The Act tries to achieve its
objective by creation of specialized agencies in the form of Water Pollution Control Boards,
which was entrusted with the job of prevention and control of water pollution. The Air
(Prevention and Control of Pollution) Act, 1981, hereinafter referred as the Air Act, was passed
in the same fashion as the Water Act. After this enactment Water Pollution Control Boards were
renamed as Pollution Control Boards having powers and performing function under the Water
Act as well as Air Act. Both the enactments are based on permit system and they prescribe
punishment in case of contravention of the provisions of the Acts. The Environmental
(Protection) Act, 1986, hereinafter referred as the Environment Act, is an comprehensive
enactment not confined to a specific form of pollution like water or air pollution, rather it intends
to cover all the forms of .environmental pollutions. The Central Government has been assigned
the role of custodian of the natural environment under the Act, and therefore, the Act confers
omnibus powers in the hands of the Central Government to take measures for protecting the
environment. The power of the Central Government to make rules and to appoint authorities to
tackle the specific environmental problems are the highlights of the enactment. A brief study of
aforesaid enactments is essential in order to understand the nature and capacity of the system that
works for the prevention and control of environmental pollution in India.

The Water (Prevention and Control of Pollution) Act, 1974 ·: The Water Act has been
enacted, as the name suggests, for the purpose of prevention and control of water pollution. "It
came into being at a time when the country had already prepared itself to be a part of
industrialisation and urbanisation. The need was keenly felt for 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 provides for
the prevention and control of water pollution and the maintaining or restoring of wholesomeness
of water. In order to achieve this object the Act provided for the establishment of Boards .and
enumerates the powers and functions of such Boards. Water is a subject in the State list under the
Constitution of lndia. Consequently, the Act has been enacted by the Union Parliament by
making use of Article 252(1) of the Constitution. Article 252(1) empowers the Union Parliament
to legislate in a field reserved for the states, where two or more state legislatures have shown
their willingness for a central law. Such law is applicable to the consenting states and to any
other state which has adopted the law afterwards by passing a resolution in its legislative
assembly. In pursuance of clause (1) of Article 252 of the Constitution, resolutions were passed
by the Houses of Legislatures of twelve states3 to the effect that the matters relating to
prevention and control of water pollution should be regulated in those states by Parliament made
law. Now, all the states have approved implementation of the Water Act as enacted in 1974. The
Act consists of sixty four sections which are divided into eight chapters. Section 2 of the Act
provides definitions of certain terms used in the Act, clause (e) of this section defines water
pollution in following terms Pollution means 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 may or 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
uses, or to the life and health of animals or plants or of aquatic organism.

Thus, it is very comprehensive definition and covers all changes in physical, chemical or
biological properties of water. There are some other important definitions in the Act. 'Sewage
effluent' has been defined as "effluent from any sewerage system or sewage disposal works and
includes sullage from open drains" . 4 An inclusive definition of'stream has been given in
the .Act. "Stream" includes-: river; water course (whether flowing or for the time being dry);
inland water (whether natural or artificial); sub-terranean waters; sea or tidal waters to such
extent or, as the case may be, to such point as the state government may, by notification in the
Official Gazette, specify in this behalf. 'Trade effluent' also finds an elaborate definition under
the Act. It includes any liquid, gaseous or solid substance which is discharged from any premises
used for carrying on any industry, operation or process or treatment and disposal system other
than domestic sewage.

Mechanism for Control of Water Pollution

Chapter V of the Act, consisting of Sections 19 to Sections 33-A, provides for 'the prevention
and control of water pollution. Section 19 empowers the State Government to restrict the
application of the Act to certain area after consultation with or on recommendation of the State
Board. The provisions of the Act shall apply, in such situation, to such declared area(s) only. The
State Government may alter any such area whether by way of extension or reduction. 11 The
correct and relevant information has a very important role in prevention and control of water
pollution and therefore, the Act provides that the State Board or its officer may make surveys,
gauge and keep records of flow or volume and other characteristics of any stream or well and
may measure or record the rainfall. It may ·take necessary steps in order to obtain any
information required for the aforesaid purposes. The State Board may also give directions
requiring any person to give information as to the abstraction of water from a stream or well if it
is substantial in relation to the flow or volume of the stream or well. It may also give directions
requiring any person in charge of any establishment where any industry, operation or process or
treatment and disposal system is carried on, to furnish information regarding the construction,
installation or operation of such establishment and other related information, with a view to
preventing or controlling water pollution. The State Board or its officer can take sample for
analysis from any stream or well or samples of any sewage or trade effluent which is passing
from any plant or vessel or from or over any place into any stream or well. Such sample
however, is admissible· in evidence in any legal proceeding only if the procedure provided in
subsections (3), (4) and (5) of section 21 are complied with. The processor requires- (a) a prior
notice to the occupier, indicating intention to take sample; (b) · in the presence of the occupier or
his agent, division of the sample into two parts; (c) each sample be placed in a container, marked,
sealed and signed by both, the person taking the sample and the occupier or his agent; (d) one of
the samples be sent forthwith to the laboratory established or recognised under section 16 or 17,
as the case may be. (e) on the request of the occupier, the second part of the sample be sent to the
laboratory established or specified under sections 51 (1) or 52(1) as the case may be. In case the
occupier wilfully absents himself during the process of taking the sample, the person who has
taken the sample is required to inform the Government analyst in writing about the wilful
absence of the occupier or his agent. The sample so collected and sent is required to be analysed
by the central, state or any recognised laboratory and the report has to be sent to the Board and
occupier or his agent. Such report can be produced before a court of law in a legal proceeding if
required. Any person empowered by a State Board has a right to enter any place for the purpose
of performing any of the functions of the Board entrusted to him and for the purpose of
examining any plant, record, register, document or any other material object. The person may
conduct a search of any place in which he has reason to believe that an offence under the Water
Act has been or is being or is about to be committed. He may seize such plant, record, register,
document or other material object if it furnishes evidence of the commission often offence
punishable under the Act. No person is allowed to pollute or enter any poisonous or noxious
matter into any stream, well, sewer or land. A person, however, is not guilty of an offence if he
has a right to construct, improve or maintain any stream, well, building, bridge, weir, dam, dock,
pier, drain, sewer, or deposit material for reclaiming land or to support or protect the banks of
stream, or does accumulation of such material with the consent of the Board. A major
amendment in the Act was done in 1988 by virtue of which the Act now prohibits a person to
establish any industry, operation or process or any treatment and disposal system or any
extension or addition thereto, without the previous consent of the State Board, if it is likely to
discharge sewage or trade effluent. Similarly a person cannot, without the previous consent of
the State Board, bring into use any new or altered outlet for the discharge of sewage or begin to
make any new discharge of sewage. The Board after receiving the application for prior consent
may either grant or refuse the consent, for reason to be recorded in writing, or may impose
appropriate conditions. However, if the Board fails to grant or refuse the consent for discharge
within a period of four months, the consent shall be deemed to have been given unconditionally
on the expiry of four months.

Penalties and Procedure :

The Act prescribes different penalties for different kinds of act or non-compliance of provisions
under the Act,26 for the convenience it may be summarised as follows. 1) Offences Failure to
comply with directions given under section 20(2) or (3) by the State Board. Section 41(1).
Penalties Imprisonment. for a term ·which may extend to three · months or fine upto Rs.l 0,000
or both. In case the failure continues, an additional fine upto Rs. 5000 for every day during
which such failure continues.

(ii) Non- compliance with any order issued under section 32(1) (e) by State Board or any
direction issued by a Court under section33(2) of the Act or any direction issued under section
33A by the Board. Imprisonment for a term, not less than one year and six months but which
may extend to six years with fine. In case failure continues, with additional fine upto Rs. 5000
for every day during which such failure continues. If the failure continues beyond a period of one
year after first conviction, imprisonment for a term not less than two years which may be
extended to seven years and fine.

iii) Certain acts, mentioned under section 42(i)(a)-(g). Imprisonment for a term which may
extend to three months or fine upto Rs.lO,OOO or both.

Cases laws
In the case of A.P.Pollution Control Board v. M V. Nayudu1. The Supreme Court has held that
after the amendment of section 25 in 1988, "the prohibition now extends even to "establishment"
of the industry or taking of steps for that purpose and therefore, before consent of the Pollution
Board is obtained, neither can the industry be established nor can any steps be taken to establish
it and suggested amendment in section 28 of the Water Act in view of difficulty, which might be
faced by the Appellate authority in deciding complex environmental issues. Jagannadha Rao, J.
has emphasised this immediate need in the following words - 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 o~ group of scientists of high ranking and experience, to help in the
adjudication of disputes relating to the environment and pollution. An amendment to existing
notifications under these Acts can be made for the present.

In the case of M.C. Mehta v/s Union Of India - (Kanpur Tannerie’s Matter), 2was a public
interest litigation presented before a division bench of the hon’ble supreme court comprising of
E.S. Venkatraramiah and K.N. Singh, JJ. the petitioner M.C. Mehta, who was an active social
worker had filed this petition inter alia for the issue of writ/order/direction in the nature of
mandamus to the respondents restraining them from letting out the trade effluents into the ganga
river until the time they put up necessary treatment plants for treating the trade effluents in order
to arrest the pollution of water on the said river. it was the complaint of the petitioner that neither
1
(2001) 2 SCC 62, 84
2
AIR (1987)4 Scc 463
the government nor the people were giving adequate attention to stop the pollution f river ganga.
it was therefore sought that steps should be taken for the purpose of protecting the cleanliness of
the stream in river ganga. it was contended that the trade effluent-- trade effluent "includes any
liquid, gaseous or solid substance, which is discharged from any premises used for carrying on
any trade or industry, other than domestic sewage discharged from tanneries as ten times noxious
when compared with the domestic sewage water which flows into the river from any urban area
on its banks and was thus a major source of pollution of river ganga. there was not much dispute
on the question that the discharged of the trade effluents from these tanneries into river ganga
had been causing considerable damage to the life of the people who used the water of river ganga
and also to the aquatic life in the river. however, the tanneries of Kanpur had presented that due
to lack of physical facilities, technical knowhow and funds, it had not been possible for most of
them to install adequate treatment facilities. it was pleaded on behalf of a few tanneries that if
sometimes was given to them to establish the pre-treatment plants they would install them. It was
however, submitted by all of them that it would not be possible for them to have the secondary
system for treating waste water as that would involve enormous expenditure which the tanneries
themselves would not be able to meet. In his judgment Venkatramesh, J, held that the State was
under a constitutional duty to project and improve the environment - Environment includes
water, air and land and the interrelationship, which exist among and between water, air and land
and human beings, other living creatures, plants, microorganism and property. State has to
safeguard the forests and wildlife of the country (Article 48-A of the constitution of India). In the
opinion of the court, it was fundamental duty of every citizen to protect and improve the natural
environment including forests, lakes, rivers and wildlife, and have compassion for all living
creatures. (Article 51-A of the constitution of India). The court further decided that it was the
duty of the state government, through the state boards, sections 16 and 117 of the water
(prevention and control of pollution) act,1974.- and the central government to use the powers
conferred upon them by statute to take all such measures as it deemed preventing, controlling
and abating environmental pollution-section 3 and 5 of the environments (protection) act,1986.
In cases of this nature, the court could issue appropriate directions if it found that public nuisance
or other wrongful acts affecting or likely to affect the public are being committed and the
statutory authorities, who grievance.-under the laws of the land responsibility for treatment of the
industrial effluents is that of the industry. even the concept of strict liability could be adhered to
in some cases if the circumstances so required. finally it was said that the industries which
cannot pay minimum wages to the workers, cannot be allowed to exists, a tannery which cannot
set up a primary treatment plan couldn’t be permitted to continue to be existence. This is because
the adverse effect on the public at large which likely to ensue by the pollution of the ganga
would be immersed would be outweigh any convenience that may be caused to the management
and the Labour employment by it on account of closure of the tanneries. Thus, the financial
capacity of the tanneries was to be considered as irrelevant while requiring them to establish
primary treatment plants.
Air pollution
This specialized legislative measure is meant to tackle one face of environment pollution. The
fundamental objective of is to provide clean air to the citizens and main objectives are:

a) It provides that the air pollution in any way be prevented and controlled. It also provides that
air must be restored and maintained for future use.

b) It provides for the establishment of central and state boards for the prevention and control of
air pollution.

c) It provides powers and functions to the board so constituted relating to matters of air pollution

d) To provide penalties for the contravention of the provisions of the air act.

e) It also provides for the establishment of Central and State level air testing labs so that the
boards constituted may assess the extent of pollution.

Pollution in regard to air pollution means:

1. Impurity of air

2. Change in the physical, chemical and biological properties of air

3. Release of any sewage or trade effluents or any other form of substance into the air.

It is also to be noted that such pollution must have caused some kind of nuisance or renders such
air harmful or injurious to public health or safety or for domestic, commercial or industrial use or
is also injurious to the life and health of animals or plants.

Major Functions and powers of Central Board

1. It advises the Central Government on the matters relating to air pollution and its control.

2. It also supervises the activities of the State Board and also resolves the disputes among
them if any.

3. It also provides technical guidance and assistance to the State Boards.

4. It carries out and also sponsors the investigations to be made by the state boards so
constituted.

5. It also has the power to provide training to the persons engaged in conducting
investigations and are also engaged in the programmes related to the prevention of air
pollution and its control.
 6. It creates awareness among the general public regarding anti-air pollution techniques
with the help of mass media.

7. It also collects the statistical data and analyzes the data so collected. After doing so, it
publishes the data for general public information.

Major Functions and powers of the State Board

1. It plans for the comprehensive programme for the prevention of air pollution and its
control.

2. It also advises the state government on the matters relating to air pollution and its control.

3. It conducts investigations relating to air pollution on a regular basis.

4. It also has the power to collaborate with the Central Board in conducting training
programmes for the persons engaged in programmes relating to the prevention of air
pollution and its control.

5. It also lays down the standards of treatment of sewage.

Punishment & Penalties

1. Section 37 – failure to comply with Section 21 (failing to obtain prior consent before
operating in ‘Air Pollution Control Area’ or violates any condition(s) of the granted
consent)Imprisonment of 1 year and 6 months and fine. For continuing failure, fine upto Rs.
5000 per violation If violation continues beyond one year, imprisonment can be increased from 2
years upto 7 years with fine.

2. Violation of Section 22 (discharges air pollutants more than the prescribed standards of
air quality from any industrial plant) Imprisonment of 1 year and 6 months and fine. For
continuing failure, fine upto Rs. 5000 per violation If violation continues beyond one year,
imprisonment can be increased from 2 years upto 7 years with fine.

3. Section 38:

• Destroys, damages, defaces, etc. of any notice, boards, etc. placed by SPCB/CPCB

• failing in furnishing any information to Board or officer under Air Act;

• failing in intimating the occurrence of emission of air pollutants in excess of the standards; or

• giving any false information, or if makes any false statement.Imprisonment of 3 months or fine
upto Rs. 10,000

4. Section 39:
contravention of any of the provisions of Air Act or any order or directions issued there-under,
for which no penalty has been elsewhere provided in Air Act. Imprisonment upto 3 months or
with fine upto Rs 10,000 or with both.

Case laws

In the case of M.C. Mehta v. Union of India 3- Vehicular Pollution Case; Supreme Court of India
judgment- Union Territory of Delhi has a total population of 96 lakhs. Out of this population
approximately 90 lakh people reside in urban areas. At the time of independence the population
of Delhi was around 5 lakh. In nearly 40 years, it multiplied by 19 times. This writ petition was
filed by M.C. Mehta requesting the court to pass appropriate orders for the reduction of
Vehicular Pollution in Delhi. Supreme Court in this case held that Indian constitution recognizes
the importance of protection of environment, life, flora and fauna by the virtue of Article 51-A
and Directive principles of state policy. Therefore, it is the duty of the state to protect the
environment and all the persons using automobiles should have a fair idea of the harmful effects
on the environment due to emissions caused by their vehicles. A committee was setup to look in
to the problem and decide on what can be done. The committee was setup with the following
objectives –

To make an assessment of the technologies available for vehicular pollution control in the world;

To make an assessment of the current status of technology available in India for controlling
vehicular pollution;

To look at the low cost alternatives for operating vehicles at reduced pollution levels in the
metropolitan cities of India.

To examine the feasibility of measures to reduce/eliminate pollution from motor vehicles both on
short term and long term basis and make appropriate recommendations in this regard;

To make specific recommendations on the administrative/legal regulations required for

implementing the recommendations.

The committee was ordered to give reports in two months and also mention the steps taken.

In the case of K.M. Chinnappa, T.N. Godavarnam v. Union of India & ors 4. ; Supreme Court of
India Judgment- The court held that- Environmental law is an instrument to protect and improve
the environment and to control or prevent any act or omission polluting or likely to pollute the
environment. In view of the enormous challenges thrown by the industrial revolutions, the
legislatures throw out the world are busy in this exercise. In a number of cases, sentences of
imprisonment have been imposed. Apart from the direct cost to business of complying with the
stricter regulatory controls, the potential liabilities for non compliance are also increasing. In the
3
AIR2002 SC 1696
4
AIR 2000 SC 2774
present case the Forest Advisory Committee under the Conservation Act on 11/07/2001
examined the renewal proposal in respect of the Company’s mining lease. The Ministry of
Environment and Forests deferred a formal decision on the said recommendation as the matter
was pending before this court. Taking note of factual background, it is proper to accept the time
period fixed by the Forest Advisory Committee constituted under Section 3 of the Conservation
Act. That means mining should be allowed till the end of 2005 by which the time the weathered
secondary ore available in the already broken area should be exhausted. This is, however, subject
to fulfillment of the recommendations made by the Committee on ecological aspects. Before, we
part with this case; note that with concern that the State and Central Government were not very
consistent. Whatever be the justification, it was but imperative due application of mind should
have been made before taking particular stand. Certain proceedings have been initiated against
the company and these proceedings shall be considered by the respective forums/courts.
CONCLUSION
Industrialization and urbanization have resulted in a profound deterioration of India's air quality.
of the 3 million premature deaths in the world that occur each year due to outdoor and indoor air
pollution, the highest numbers are assessed to occur in India. According to the World Health
Organization, the capital city of New Delhi is one of the top ten most polluted cities in the world.
Surveys indicate that in New Delhi the incidence of respiratory diseases due to air pollution is
about 12 times the national average. The Act provides for the prevention, control and abatement
of air pollution. It also provides for the establishment of Boards with a view to carrying out the
aforesaid purposes. Decisions were taken at the United Nations Conference on the Human
Environment held in Stockholm in June, 1972, in which India participated, to take appropriate
steps for the preservation of the natural resources of the earth which, among other things, include
the preservation of the quality of air and control of air pollution; Water Act 1974 aims to prevent
and control water pollution. Under Water Act, 1974, pollution control boards were created, who
are responsible for implementation of its provisions. One of the important provision of the Water
Act, 1974 is to maintain and restore the ‘wholesomeness’ of our aquatic resources. Under Water
Act 1974, Sewage or pollutants cannot be discharged into water bodies including lakes and it is
the duty of the state pollution control board to intervene and stop such activity. Anyone failing to
abide by the laws of under is liable for imprisonment under Section 24 & Section 43 ranging
from not less than one year and six months to six years along with monetary fines.
BIBLIOGRAPHY

BOOKS

i) Enviromental law by P.leelakrishnan 5th edition

ii) Enviromental law by S.C shastri 5th edition

WEBSITES

WWW.lawbites .com

https;\\aida Americas.org/ blog / environmemtal law