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1
PROJECT TITLE: WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974
SUBJECT: ENVIRONMENTAL ENVIRO NMENTAL LAW LAW
NAME OF THE TH E FACULTY: FACULTY: MISS BUSHRA BUSHR A QASMI
SUBMITTED BY: CHANDRIA CHOUDHARY AND ASIF HAN
ROLL NO!: "#1$#$% AND "#1$#$1
SEMESTER: 7TH SEMESTER
OCTOBER "#17
ACNOWLED&EMENT
2
I would like to express my special thanks of gratitude to my teacher MISS BUSHR !SMI" who ga#e me the golden opportunity to do this pro$ect on %&'(R )*R(+(,'I-, ,. /-,'R-0 - *-00U'I-, /'" 13456" which also helped me in doing a lot of research and I came to know a7out so many new things I am really thankful to them8 Secondly I would also like to thank my parents and friends who helped me a lot in finali9ing this pro$ect within the limited frame8 I want to con#ey a most sincere thanks to my concerned faculty for helping me throughout the pro$ect without whose exor7itant support this pro$ect would not ha#e 7ecome a reality8
ABSTRACT
:
'he Indian constitution recogni9es the 7asic fundamental right of its citi9ens; the right to a clean and healthy en#ironment8 rticle 21 of the constitution insists that no person shall 7e depri#ed of his
TABLE OF CONTENTS
5
18 Introduction>>>>>>>>>>>>>>>>>>>>>>>>8888888 28 ramework of the &ater ct>>>>>>>>>>>>>>>>>>>8 :8 Scope of ?udicial Relief under the &ater ct>>>>>>>>>>>>> =
*ondicherry *aper 0td8 #8 /B*/ of &ater *ollution>>>>>>>
=
.elhi Bottling /o8 *#t8 0td8 #8 /B*/ of &ater *ollution>>>>>
=
ggarwal 'extile Industries #8 State of Ra$asthan>>>>>>>>
58 /riminal 0ia7ility under the &ater ct>>>>>>>>>>>>>> @8 'he &ater /ess ct>>>>>>>>>>>>>>>>>>>>>>> =
ndhra *radesh Rayons 0td8 /ase>>>>>>>>>>>>>>
=
Rayon Silk Manufacturing /o8 0td>>>>>>>>>>>>>888
A8 /onclusion>>>>>>>>>>>>>>>>>>>>>>>>>>8 =
*re#ention Measures>>>>>>>>>>>>>>>>>>
=
*enalties>>>>>>>>>>>>>>>>>>>>>>88
48 Bi7liography>>>>>>>>>>>>>>>>>>>>>>>>>>
INTRODUCTION'
@
resh water is one of our most #ital resources" and when our water is polluted it is not only de#astating to the en#ironment" 7ut also to human health8 &ater is a fundamental human need8 (ach person on (arth reuires atleast 2C to @C liters of clean" safe water a day for drinking" cooking and simply keeping themsel#es clean8 Much of that water comes from ri#ers" lakes and other surface water sources8 Before it is deli#ered to our homes it is treated to remo#e chemicals" particulates )e8g8" soot and silt and 7acteria8 'his clean" pota7le water is then used for cooking" drinking" cleaning" 7athing" watering our lawns and so forth8 'hose that are ser#ed 7y pu7lic sanitation systems rely on sewers to keep untreated wastewater from 7eing released into the en#ironment where it could potentially contaminate our drinking water sources and the natural en#ironment" when the water goes down the drain or is flushed down the toilet" it usually enters a sewer system where it tra#els to a wastewater treatment plant8 'he plant treats the wastewater and remo#es solid waste and other contaminants 7efore releasing the treated water it into the en#ironment8 .epending on the type of treatment the wastewater recei#es" water that is released could ha#e different le#els of uality from the water 7ody which it is released8 &ater is o7#iously essential for hydration and for food production= 7ut sanitation is an eually important" and complementary" use of water8 lack of proper sanitation ser#ices not only 7reeds disease" it can ro7 people of their 7asic human dignity8 'he uality of our water is directly linked to the uality of our li#es8 By supporting clean water initiati#es and similar measures that impro#e our water and wastewater treatment systems" we can each ha#e a hand in ensuring clean" safe water for oursel#es" our families and our communities8
FRAMEWOR OF THE WATER ACT'
'he &ater )*re#ention and /ontrol of *ollution ct of 1345 is a complex statute which has 7een in effect for o#er two decades8 Many features of the ct ha#e challenged in the courts8 In this section we discuss the framework of the &ater act and analy9e ma$or issues including the scope of $udicial relief authori9ed 7y the constitutional challenges to the ct" lia7ility of corporate officers" and funding of the administration of the ct8
A
'he &ater ct of 1345 represented one of IndiaDs first attempts to deal comprehensi#ely with an en#ironmental issue8 *arliament adopted minor amendments to the ct in 134E and re#ised the ct in 13EE to more closely conform to the pro#isions of the (n#ironment )*rotection ct of 13EA8 &ater is a su7$ect in the State 0ist under the /onstitution8 1 /onseuently &ater ct" a central law" was enacted under rticle 2@2)1 of the /onstitution" which empowers the Union Fo#ernment to legislate in a field reser#ed for the states" when two or more State 0egislatures consent to a central law8 ll the states ha#e appro#ed implementation of the &ater ct as enacted in 134582 'he &ater ct esta7lishes a /entral and state pollution control 7oards8 'he /entral 7oard may ad#ise the /entral Fo#ernment on water pollution issues" coordinate the acti#ities of state pollution control 7oards" sponsor in#estigations and research relating to water pollution" and de#elop a comprehensi#e plan for the control and pre#ention of water pollution8: 'he /entral Board also performs the functions of a state 7oard for the union territories8 In conflicts 7etween a State 7oard and the /entral 7oard pre#ails8 Since 13E2" the /entral 7oard has 7een attached to the Union Fo#ernmentGs .epartment of (n#ironment" orests and &ildlife8 'he &ater ct is comprehensi#e in its co#erage" applying to streams" inland waters" su7terranean waters" and sea or tidal waters8 Standards for the discharge of effluent or the uality of the recei#ing waters are not specified in the ct itself8 Instead" the ct ena7les state 7oards to prescri7e these standards85 'he ct pro#ides for a permit system or DconsentD procedure to pre#ent and control water pollution8 'he ct generally prohi7its disposal of polluting matter in streams" wells and sewers or on land in excess of the standards esta7lished 7y the state 7oards8 @ person must o7tain consent from the state 7oard 7efore taking steps to esta7lish any industry" operation or process" any treatment and disposal system or any extension or addition to such a system which might result in the discharge of sewage or trade effluent into a stream" well or sewer or onto land8 A'he state 7oard may condition its consent 7y orders that specify the location" construction and use of the outlet as well 1
(ntry 14" 0ist II" Se#enth Schedule8 Howe#er" the 13EE amendment has yet to 7e adopted 7 y all the states8 : Section 1A of the &ater ct" 13458 5 Section 14)g" 'he (n#ironment )*rotection ct of 13EAgi#es the /entral Fo#ernment similar authority to esta7lish water uality and effluent standards throughout India8 @ Section 258 A Section 2@8 Section 2A reuires that persons releasing water pollutants prior to the adoption of the &ater ct must also meet the consent reuirements of section 2@8 2
4
as the nature and composition of new discharges8 'he state 7oard must maintain and make pu7lic a register containing the particulars of the consent orders8 'he ct empowers a state 7oard" upon thirty days notice to a polluter" to execute any work reuired under a consent order which has not 7een executed8 'he 7oard may reco#er the expenses for such work from the polluters8 -ther functions of the state 7oards specified 7y the &ater ct include )1 planning a comprehensi#e program for pre#ention" control" and a7atement of water pollution in the state; )2 encouraging" conducting" and participating in in#estigations and research of water pollution pro7lems; ): inspecting facilities for sewage and trade effluent treatment; and )5 de#eloping economical and relia7le methods of treatment of sewage and trade effluents84 'he ct gi#es the state 7oards the power of entry and inspection to carry out their functions8 E Moreo#er" a state 7oard may take certain emergency measures if it determines that an accident or other unforeseen e#ent has polluted a stream or well8 'hese measures include remo#ing the pollutants" mitigating the damage" and issuing orders to the polluter prohi7iting effluent discharges8 'he 13EE amendment introduced a new section :: which empowers state 7oards to issue directions to any person" officer or authority" including orders to close" prohi7it or regulate any industry" operation or process and to stop or regulate the supply of water" electricity or any other ser#ice8 *rior to the adoption of section ::" a state 7oard could issue direct orders to polluters under section :2 of the ct8 state 7oard" howe#er" could only exercise this power if the pollution arose from any accident or other unforeseen act or e#ent8 Moreo#er" a state 7oardDs authority to issue orders under section :2 was limited to orders directed to the polluter" not to go#ernment officials or other parties8 'he state 7oards can also apply to courts for in$unctions to pre#ent water pollution under section :: of the ct8 Under section 51" the penalty for failure to comply with a court order under section :: or a direction from the 7oard under section :: is punisha7le 7y fines and imprisonment8 'he amendments also increased the power of the /entral 7oard relati#e to the state 7oards8 Under section 1E of the ct" the /entral Fo#ernment may determine that a state 7oard has failed to comply with /entral 7oard directions and that 7ecause of this failure an emergency has arisen8 'he /entral Fo#ernment may then direct the /entral 7oard to perform the functions of the state 7oard8 4
Section 148 Section 2:8
E
E
'he 13EE amendments modified section 53 to allow citi9ens to 7ring actions under the &ater ct8 ,ow a state 7oard must make rele#ant reports a#aila7le to complaining citi9ens" unless the 7oard determines that the disclosures would harm Dpu7lic interestD8 *re#iously" the ct allowed courts to recogni9e only those actions 7rought 7y a 7oard" or with a pre#ious written sanction of a 7oard8
SCOPE OF JUDICIAL RELIEF UNDER THE WATER ACT'
?udicial opinion concerning the scope of section :: of the &ater ct is di#ided8 In the following excerpt from the Pondicherry Papers Ltd. Case, the doctrines in#oked 7y the Madras High /ourt in its ruling that courts ha#e 7road powers to fashion orders under section ::8
Pondicherry Papers Ltd vs. Central Board for Prevention and Control of Water Pollution-9
'he /entral 7oard" acting as a state 7oard for *ondicherry" applied to a magistrateDs court under Section :: of the &ater ct seeking an in$unction restraining a paper company from discharging effluent until the company constructed a water treatment plant as reuired 7y the conditions of the 7oardDs consent orders8 'he magistrate issued an in$unction8 'he company filed a motion to uash the in$unction on the grounds that a magistrate does not ha#e the authority under Section :: to order compliance with a consent order8J R*+- .+/- 0 -2 0/3/
%'he next uestion is what the powers of the Magistrate are when such an application is made8 Su7=section ): deals with these powers8 'he /ourt may make an order restraining the petitioner from polluting the water in any stream or well and in doing so" it may in that order direct the petitioner to desist from taking such action as is likely to cause pollution" or" as the case may 7e" remo#e from such stream or well such matter" or it can authori9e the Board to do soJ under su7=section :)ii8 It is well recogni9ed that where an ct confers a $urisdiction it impliedly also grants the power of doing all such acts or employing such means as are essentially necessary to its execution" 7ut 7efore implying the existence of such a power" the court must 7e
3
Madras High /ourt /ri8M8*8,o8 5AA2 and 5AA: of 134E March 21" 13EC
3
satisfied that the existence of that power is a7solutely essential for the discharge of the power conferred and not merely that it is con#enient to ha#e such a power8
In Dr. Indiremani Dyarelai Gupta v Nathu
1C
it has 7een held thatJ to $udge whether
legally a power could 7e #ested in a statutory 7ody" the proper rule of interpretation is that unless the nature of the power was such as to 7e inconsistent with the purpose for which the 7ody was created" or unless the particular power was contra indicated 7y any specific pro#ision of the ct" any power which furthers the pro#ision of the ct" could 7e legally conferred8 'he &ater )*re#ention and /ontrol of *ollution ct is social welfare legislation" enacted for the purpose of pre#ention of pollution of water and for maintaining or restoring wholesomeness of water8 'herefore" the ct has to 7e strictly enforced and e#ery effort should 7e made to carry out the true intent of the legislation8 -n these principles" the Magistrate has to act when an application is filed under Section :: and it would 7e for him to determine according to the circumstances of the case what order he should pass in order to gi#e effect to the pro#isions of the ct and to remo#e the pollution or pre#ent it8 'he Madras High /ourt clearly found that 7ased on the doctrines of implied powers and strict enforcement of pu7lic welfare legislation" courts ha#e 7road powers to fashion in$uncti#e relief under section :: of the &ater ct8 'he llaha7ad High /ourt implicitly adopts this #iew811 &hen we compare this approach with that of the .elhi high /ourt in the following excerpt8 'he /entral 7oard has issued consent orders to a 7ottling company on the condition that the company 7uilds a water treatment plant8 'he company failed to 7uild the plant and was polluting a near7y ri#er with its effluent8 'he 7oard o7tained an in$unction under section :: restraining the company from polluting and ordering the company to 7uild the treatment plant8 'he company challenged the in$unction in the .elhi High /ourt8
Delhi Bottling Company Pvt. Ltd. vs. Central Board for the Prevention and Control of Water Pollution- 12
'he learned Magistrate also took note of the fact that the petitioners had not erected any treatment plant as per /l8@ of the consent order8 *etitionerDs counselJ su7mitted that there was no a7solute o7ligation on the part of the petitioners to erect a separate treatment plant so long as they were not discharging the effluents contrary to the parameters as pro#ided in the consent order8 Be that as it may" the true interpretation of the impugned order is that restraint order has 7een passed against the petitioners restraining them from discharging their effluents in the stream which do not conform to the uality as per the standards prescri7ed 7y the Board in its consent order and there7y causing pollution of the stream8 &e cannot read 7etween the orders that a direction has 7een gi#en to erect a treatment plant8 Such a direction is also perhaps not en#isaged 7y the pro#isions of S8:: )1 of the ct8 SectionJ ::)1 only pro#ides for the passing of a restraint order 7y the court against the /ompany for ensuring stoppage of apprehended pollution of water in the stream in which trade effluents of the /ompany are discharged8 I" therefore" need not go into the uestion as to whether the petitionersD non=erection of a treatment plant was such an act on which the impugned order was $ustified8 'he restraint order is also not 7ased on that footing8 or the non=erection of the treatment plant the Board has the power to launch prosecution against the defaulting /ompany under the pro#isions of S851 of the ct8
tactic of the polluters to a#oid the restraining orders under section :: is a motion to uash the order on the grounds that the &ater ct #iolates the fundamental right to carry on a trade or 7usiness guaranteed 7y rticle 13)1 )g of the /onstitution of India8 'he Ra$asthan High /ourt 7alanced the interests protected 7y the &ater ct against the competing interests protected 7y rticle 13)1 )g in the following case8 lower court had issued a restraining order against textile companies that were discharging effluents after the expiration of consent orders from the state and /entral 7oards8 'he companies filed writ petitions in the Ra$asthan High /ourt challenging the #alidity of the restraining order8
!!"WL #$%#&L$ &'D()#"&$) v )##$ *+ ",)#' 1: 1:
Ra$asthan High /ourt S8B8/8 &rit *etition ,o8 1:4@
11
-R.(R *etitionersD counselJ has #ehemently argued that the pro7lem of pre#ention of water pollution is a pro7lem of #ast magnitude and it wouldnGt 7e 7eyond the means of an indi#idual to pre#ent or control the pollution resulting from an industry set up 7y him and that the prohi7ition contained in Section 25 of the ct would result in complete closure of the 7usiness of the petitioners and that it would thus result in imposing unreasona7le restrictions to carry on their trade and 7usiness8 I am una7le to accept the aforesaid contention8 It is true that the pre#ention and control of pollution of water may in#ol#e expenditure 7eyond the means of a particular indi#idual carrying on any particular industry and it may reuire co=operation amongst #arious units and the local authorities to effecti#ely pre#ent and control such pollution8 'he ct also en#isages that one of the functions of the State Board is to plan a comprehensi#e program for the pre#ention" control or a7atement of pollution of streams and wells in the State and to secure the execution thereof and to e#ol#e economical and relia7le methods of treatment of sewage and trade effluent" ha#ing regard to the peculiar conditions of soils" climate and water resources of different regions8 But" this does not mean that an indi#idual" while exercising his right to carry on his trade or 7usiness" is free to pollute the source of supply of water to other citi9ens" and there7y cause harm to the interest of the general pu7lic8 It cannot 7e disputed that pollution of water is a #ery serious ha9ard for the health of the general pu7lic" and the pro#isions of the ct which seek to pro#ide for the pre#ention and control of water pollution and maintaining or restoring the wholesomeness of water are enacted in the interest of the general pu7lic8 'he uestion which next arises for consideration is" whether the aforesaid restriction that has 7een placed 7y Section 25 of the ct is an unreasona7le restriction8 Su7 section )2 of Section 25 ena7les a person to cause or permit a trade effluent to enter into a stream pro#ided the consent of the State Fo#ernment is o7tained8 Sections 2@ and 2A of the ct make pro#isions for the grant of consent 7y the State Board for discharging any sewage or trade effluent into a stream or well8 Section 2E pro#ides for an appeal against an order made 7y the State Board under Sections 2@ and 2A" and a further right of re#ision is conferred under Section 23 of the ct8 'his shows that the ct contains adeuate pro#isions for grant of consent 7y the State Board as well as pro#isions for appeal and re#ision against the orders passed 7y the State Board so as to ena7le a person to carry on his trade or 7usiness after o7taining the consent of the State Board8 It is" therefore" not possi7le to hold that Section 25)1 imposes 12
unreasona7le restrictions on the right of the petitioners to carry on their trade or 7usiness8
CRIMINAL LIABILITY UNDER THE WATER ACT'
'he water act esta7lishes criminal penalties of fines and imprisonment for noncompliance with section :: orders" section 2C directions concerning information" section :2 emergency orders and section :: directions issued 7y a state 7oard815*olluters #iolating the act are also su7$ect to criminal penalties8 1@ 'he 133E amendments to the water act increased the penalties for these offences" 7ringing them into line with the 13E4 amendments to the ir act8 Section 54 of the water act extends lia7ility for #iolations committed 7y companies to certain corporate employees and officials8 'he act also extends lia7ility for #iolation to the heads of go#ernment departments8 1A 'he following commentary14 discusses the lia7ility of corporate officials and employees under the water act= % Section 47 of the ater pollution act contains the usual pro#ision to the effect that where an offence under the act has 7een committed 7y a company" e#ery person" who at the time of the commission of the offence" K was in charge of " and was responsi7le to the company for the conduct of the 7usiness of the company" as well as the company" shall 7e deemed to 7e guilty of the offence and shall 7e lia7le to 7e proceeded against and punished accordingly8G Under the pro#iso to the section" such company official is exempt from punishment" if he pro#es that the offence had 7een committed without his knowledge" or that he had exercised all due diligence to pre#ent the commission of such offence 8 /ompany officials may well like to 7ear in mind that statutory pro#isions making company officials lia7le are contained in almost e#ery /entral ct that is enacted in recent times8 In a way" such pro#isions impose a fictional lia7ility on the company officer8 'he pro#ision usually runs in two su7=sections8 'he first su7=section pro#ides = as does section 54 of the &ater *ollution ct that e#ery person who is in charge of and responsi7le to the company for the conduct of the affairs of the company Dis lia7leD for the offence )in addition to the company" unless he can pro#e that the offence had 15
Section 51 Section 5: L 55 1A Section 5E 14 Bakshi; /orporate (xecuti#es and the *ollution 0aw" )13EA 2 /omp8 08?8 A1 1@
1:
7een committed without his knowledge or that he had exercised all due diligence to pre#ent its commission8 'he second su7=section usually pro#ides that where an offence )under the rele#ant ct has 7een committed 7y a company" and it pro#ed that the offence is due to the conni#ance of or attri7uta7le to any neglect on part of any director" manager" secretary or other officer of the company" then such director" manager" secretary or other officer shall also 7e deemed to 7e guilty of the offence and shall 7e lia7le to 7e proceeded against and punished accordingly8 'his su7 section" it may 7e noted" is not confined to a person Din chargeD of the company responsi7le for its affairs8 It applies to e#ery officer of the company" howe#er small may 7e8 But his conni#ance or neglect has to 7e pro#ed8 In this sense" its scope is narrow8 But in another respect" the scope is wide" inasmuch as it does not reuire actual participation or mental support of the officer8 In the context of pollution law and offences under such laws" such a pro#ision in the ct would mean that if a companyGs production manager or technical director has 7een remiss in ensuring that the pollution regulations ha#e 7een strictly complied with" and then he would 7ecome punisha7le for the rele#ant offence under the ct8 He may 7e miles away from the scene of the offence and may not ha#e sanctioned its commission8 He might e#en ha#e 7een unaware of it8 nd yet" he would 7ecome criminally lia7le8 &illfully permitting the offence is not necessary in the &ater *ollution ct; though such was the shape of the pro#ision in some earlier /entral cts imposing criminal lia7ility on corporate officials8
THE WATER CESS ACT'
*arliament adopted the &ater /ess )*re#ention and /ontrol of *ollution ct of 1344 to pro#ide funds for the /entral and state pollution control 7oards8 'he ct empowers the /entral Fo#ernment to impose a /ess on water consumed 7y industries listed in Schedule I of the ct8 Specified industries and local authorities are su7$ect to the /ess if they use water for purposes listed in Schedule II of the ct" which includes )l industrial cooling" spraying in mine pits" or D7oiler feedD; )2 domestic purposes; ): processing which results in water pollution 7y 7iodegrada7le water pollutants; or )5 processing which results in water pollution 7y water pollutants which are not easily 7iodegrada7le or are toxic8 re7ate of twenty=fi#e per cent of the /ess is gi#en to complying industries and authorities8 15
Many companies challenged imposition of the /ess" claiming that they were not within the specified industries8
'he uestion which is sought to 7e raised in this petition is whether the respondent ndhra *radesh Rayons 0td8 &hich is manufacturing Rayon Frade *ulp" a 7ase material for manufacturing of synthetics or man=made fa7rics is an industry as mentioned in Schedule I of the &ater )*re#ention and /ontrol of *ollution /ess ct" 1344 for the purposes of le#y on &ater /ess under the ct8 Specified industry is one which is mentioned in Schedule I which is as follows 48 /hemical industry8 148 'extile industry8 1E8 *aper industry8 1@8 *rocessing of animal or #egeta7le products8 Before us it was sought to 7e can#assed that Rayon Frade *ulp is co#ered either 7y Item ,-84 which is chemical industry or Item ,o8 1C which is textile industry or Item ,o8 11 which is paper industry8 &e are una7le to accept the contention8 It has to 7e 7orne that this ct with which we are concerned is an ct imposing lia7ility for /ess8 'he ct is fiscal in nature8 'he ct must" therefore" 7e strict construed in order to find out whether a lia7ility is fastened on a particular industry 'he su7$ect is not to 7e taxed without clear words for that purpose; and also that e#ery ct of *arliament 7e read according to its natural construction of words8 'he purpose of the ct is to reali9e money from those whose acti#ities lead pollution and who must 7ear the expenses of the maintenance and running of the State Board8 It is a fiscal pro#ision and must" therefore" not only 7e literally construed 7ut 7e strictly construed8 &e find nothing to warrant the conclusion that Rayon Frade *ulp is included in either of the industries as can#assed on 7ehalf of the petitioner here8
$"L )##$ B*"D +*" P"$$'#&*' 'D C*'#"*L *+ W#$" P*LL(#&*' v !WL&*" "/*' )&L '(+C#("&'! 3W$&'!4 C*P'/ L#D.19 1E
IR 13E3 S/ A11
13
IR 13EA (R 2@A
1@
-R.(R 'he /ess ct is not to 7e read in #acuum or in a manner dissociated with the &ater *ollution ct8 'he learned single ?udge in the lower courtJ felt that the /ess ct could 7e #iewed in isolation8 'hat is e#ident from the following o7ser#ation contained in the $udgment 'he purpose of the *ollution ct is to control water pollution; 7ut the purpose of the /ess ct is to le#y and collect a /ess" i8e8" a tax for a special administrati#e purpose8 Nou cannot make rules under the /ess ct to achie#e the purposes of another ct8 (mphasis supplied 7y the court8J In Saraswati Sugar Mills # Haryana State Board2C the Supreme /ourt strictly construed the entry co#ering processing of animal or #egeta7le products industry to exclude the manufacture of sugar from sugar cane8
CONCLUSION'
fter the Stockholm /onference in ?une 1342" it was considered appropriate to ha#e a uniform law across the country to deal with 7roader en#ironment pro7lems endangering the health and safety of people as well as of the countryGs flora and fauna8 'he &ater )*re#ention and /ontrol of *ollution ct" 1345)%the &ater ct6 was the first enactment 7y the *arliament in this direction8 'his was also the first
2C
IR 1332 S/ 2258 In #iew of this $udgment" isan Sahakari Mills # State of Uttar *radesh IR 13E4 00 23E and 'ra#ancore Sugars L /hemicals 0td8 # *ollution /ontrol Board 133C )2 (R808'8 325 are no longer good law8 'he strict construction test was reiterated 7y the Supreme /ourt in a 133@ decision reported at Bihar State *ollution /ontrol Board # 'ata (ngineering L 0ocomoti#e /o8 0td8 133E )E S//42C8
1A
specific
and
comprehensi#e
legislation
institutionali9ing
simultaneously
the
regulatory agencies for controlling water pollution8 'he *ollution /ontrol Boards at the /entre and the States came into 7eing in terms of this ct8 'he &ater ct was enacted with the aim of pre#enting and controlling water pollution in India8 *ollution has 7een defined under the &ater ct as" %the contamination of water or such alteration of the physical" chemical or 7iological properties of water or such discharge of any sewage or trade effluent or of any other liuid" gas and solid su7stance into water )whether directly or indirectly as may 7e the case or is likely to create nuisance or render such water harmful or in$urious to pu7lic health or safety or to domestic" commercial" industrial" agricultural or other legitimate uses" or to the life and health of animals or plant or of auatic organi9ations68
Prevention !easures 'he &ater ct pro#ides for a permit system similar to the one a#aila7le under the ir ct to pre#ent and control water pollution8 'he &ater ct prohi7its disposal of polluting materials in streams )which includes su7terranean waters" ri#ers" wells" sewers" sea or tidal waters to such extent or" as the case may 7e" to such point as the State Fo#ernment may" 7y notification in the -fficial Fa9ette" specify in this 7ehalf" in excess of the standards esta7lished 7y the /entral *ollution /ontrol Board8 Under the pro#isions of the &ater ct a person must o7tain consent from the State *ollution /ontrol Board 7efore taking any steps to esta7lish any industry" operation or process" any treatment and disposal or any extension or addition to such a system which might result in the discharge of sewerage or trade effluents into a stream" well or sewer or onto land8 'he application to the State *ollution /ontrol Board must 7e made under Rule :2 of the &ater )*re#ention and /ontrol of *ollution Rules" 134@in orm OIII8 'he application reuires specification of the type as well as uantity of the effluent8 'he applicant is also reuired to attach a list of raw materials and chemicals used per month8 In the e#ent there is a change in the raw materials used as well as the nature or uantity of the effluent" a fresh consent would 7e reuired8 Under the &ater ct" the State *ollution /ontrol Board has the power to issue directions to any person" officer or authority" including orders to close" prohi7it or regulate any industry" operation or process and to stop or regulate the supply of water" electricity and any other ser#ice8 'he *owers and functions of the /entral *ollution /ontrol Board and the State *ollution /ontrol Boards under the &ater ct are similar to those under the ir ct" 14
except in that they ha#e greater powers in respect of certain matters specifically enumerated under the ir ct which ha#e not 7een mentioned under the &ater ct8
Penalties Sections 5: and 55 of the &ater ct pro#ide that whoe#er causes discharge of any poisonous" noxious" or polluting matter into any strea m or well or sewer or on land or esta7lishes any industry without the pre#ious permission of the State *ollution /ontrol Board may 7e punished with a fine and imprisonment for a minimum term of one year and six months and a maximum term of six years8 It must 7e noted that the &ater ct pro#ides for certain exceptional circumstances under which a person may discharge polluting material in a water 7ody" such as 18 /onstructing" impro#ing and maintaining in or across or on the 7ank or 7ed of any stream any 7uilding" 7ridge" weir" dam" sluice" dock" pier" drain or sewer or other permanent works which he has a right to construct" impro#e or maintain; 28 .epositing any materials on the 7ank or in the 7ed of any stream for the purpose of reclaiming land or for supporting" repairing or protecting the 7ank or 7ed of such stream pro#ided such materials are not capa7le of polluting such stream; :8 *utting into a stream" any sand or gra#el or other natural deposit which has flowed from or 7een deposited 7y the current of such stream; 58 /ausing or permitting" with the consent of the State Board" the deposit accumulated in a well" pond or reser#oir to enter into any stream8 In case of offences committed 7y corporations" the &ater ct specifies that in the e#ent any offence is committed 7y a company" e#ery person who was directly in the charge of and responsi7le for the conduct of the 7usiness of the company )at the time the offence was committed together with the company shall 7e lia7le to 7e proceeded against and punished accordingly8 Howe#er" it also pro#ides that no person shall 7e held guilty in the e#ent it is pro#ed that the offence was committed without the knowledge of such person or despite exercising all due diligence to pre#ent the commission of such offence8 'he scope of Section 54 of the &ater ct was discussed at length 7y the *atna High /ourt in !ahmud "li v. State of #ihar "nd "nother 821 0ooking at the scheme of Section 54" the /ourt said that Section 54)1 creates a deeming legal fiction where7y e#ery person who is in charge of or responsi7le to the company for the conduct of its 7usiness 7ecomes automatically guilty of the offence 21
IR 13EA *at 1::
1E
committed 7y such a company and is lia7le to 7e proceeded against and punished accordingly8 ,o other o#ert act or direct commission of the offence 7y such a person is necessary 7arring the factum of 7eing in charge of the company or responsi7le thereto for the conduct of its 7usiness8 -nce the allegation is le#eled or esta7lished" then 7y a fiction of the law e#ery person in charge of and responsi7le to the company for the conduct of its 7usiness is" in the eye of law" deemed to 7e as guilty of the offence as the primal offending company8 Howe#er" this strict rule is tempered and softened 7y the *ro#iso to Section 54)18'his lays down that such a person may wriggle out of the lia7ility if he pro#es that the offence was committed without his knowledge or that he exercised all due diligence to pre#ent the commission of the offence8 'he 7urden of proof is clearly laid upon such a person and it is thus plain that the pro#iso is a rule of e#idence that re#erses the ordinary mandate of criminal lia7ility that the 7urden of esta7lishing the offence lies on the prosecution8 'he &ater /ess )*re#ention and /ontrol of *ollution ct of 1344 was adopted 7y the parliament to pro#ide funds for the /entral and state pollution control 7oards8 'he ct empowers the /entral Fo#ernment to impose a /ess on water consumed 7y industries8
BIBILIO&RAPHY'
B00: 18 Shyam .iwan and rmin Rosencran9" (n#ironmental 0aw and *olicy in
India" /ases" Materials and Statutes" 2nd ed8" 2CCE" -xford8 28 *8 0eelakrishnan" (n#ironmental 0aw in India" :rd" 2CCE" 0exis ,exis8
