Dr.

Ram Manohar Lohia National Law University

B.A.LL.B (Hons.)VI Semester (2019-2020)

Law of Environment
Study Material

Part -II

Compiled By
Dr.Aman Deep Singh
RMLNLU
 WATER POLLUTION CONTROL

Objectives:

After studying this material you must develop an understanding of the

following points related to the Water (Prevention and Control of
Pollution) Act, 1974

 Water Pollution – Meaning

 Central and State Pollution Control Boards –Constitution,
Powers and Functions
 Water Pollution Control Areas; Samples of Effluents –
Procedure
 Consent Requirement – Procedure, Grant/Refusal, Withdrawal,
Review, Appeals, Revision
 Restraint Order
 Citizen Suit Provision; Offences and Penalties
 Effect of Section 33 of the Water Act on Section 133, Cr.PC
 Inadequacies and Infirmities of the Water Act

Water pollution is one of the major problems facing the humanity. There
are various causes of water pollution. Industrial effluent directly
entering into a stream or through a municipal sewer or through
discharge on land meant for irrigation results in water pollution. The
term ‘streams’ includes:

(i) river;

(ii) watercourse (whether flowing or at the time being dry);

(iii) inland water (whether natural or artificial);

(iv) sub-terranean waters; and 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.
 However, the major source of water pollution comes from community
wastes from human settlements. Most of these wastes are discharge of
animals or plants or of aquatic organisms1. Things stored on land, for
example, raw material, solid refuse of a mine or quarry on land may
cause pollution by rain, washing it into stream. Interestingly, air
pollutant may also cause water pollution. Especially, the metal
pollution in lakes (from metals like cadmium, mercury, lead etc)
results mainly due to air borne pollutants emanating from combustion
of coal. Moreover, 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 underground

dumping of trade or sewage effluent. The seepage or percolation of
human waste from land due to improperly constructed or improperly
placed septic tanks or leaking sewer lines also pollutes ground water.

The problem of water pollution assumes special significance in a

developing country like India. The major legislation in India to deal
with this problem is the Water (Prevention and Control of
Pollution) Act passed in 1974 by the Parliament under article 252 of
the Constitution of India. Thereafter, the Act was amended in 1978 and
1988. The Act was passed with the following objectives:

1. to provide for the prevention and control of water pollution and the
maintaining or restoring of wholesomeness of water (in the stream or
well or sewer or land);
2. to establish Central and State Boards for the prevention and control of
water pollution:
3. for conferring on and assigning to such Boards powers and functions
relating thereto and for matters connected therewith.

The Act defines some of the important 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 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 of aquatic organisms2.

1
. Section 2(j) Water (Prevention and Control of Pollution) Act
1974.
2
. Section 2 (e) Water (Prevention and Control of Pollution) Act
1974.
 ‘Sewage effluent’3 means:

Effluent from any sewage system or sewerage disposal works and

includes sullage from open drains.

I. THE CENTRAL AND STATE POLLUTION CONTROL BOARDS

The Water (Prevention and Control of Pollution) Act establishes the Central
and State Boards for the prevention and control of water pollution4.

1. Functions of Central Board

3
. Section 2 (g) Water (Prevention and Control of Pollution) Act
1974.
4
. Section 3 and 4 of Water (Prevention and Control of Pollution) Act
1974.

Section 3 states: Constitution of Central Board.—(1) The Central

Government shall, with effect from such date (being a date not later than
six months of the commencement of this Act in the States of Assam,
Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir,
Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal
and in the Union territories) as it may, by notification in the Official
Gazette, appoint, constitute a Central Board to be called the a[Central
Pollution Control Board] to exercise the powers conferred on and perform
the functions assigned to that Board under this Act.

(2) The Central Board shall consist of the following members, namely:

(a) a full-time chairman, being a person having special knowledge

or practical experience in respect of b[matters relating to environmental
protection] or a person having knowledge and experience in administering
institutions dealing with the matters aforesaid, to be nominated by the
Central Government;

(a) Substituted by section 3, Act 53 of 1988, for ‘Central Board for the Prevention
and Control of Water Pollution’ (wef 29 September 1988).

(b) Substituted by section 3, Act 44 of 1978 for certain words.

(b) c[such number of officials, not exceeding five,] to be

nominated by the Central Government to represent that
Government;

(c) such number of persons, not exceeding five to be nominated by

the Central Government, from amongst the members of the State
Boards, of whom not exceeding two shall be from those referred to in
clause (c) of sub-section (2) of section 4;
The functions of the Central Board are to:

(i) advice the Central Government on any matter concerning the

prevention and control of water pollution5;

(ii) co-ordinate activities of the State Boards and resolve disputes among
them6;

(iii) provide technical assistance and guidance to State Boards, carry out and
sponsor investigations and research relating to problems of water

(d) d[such number of non-officials, not exceeding three,] to be

nominated by the Central Government, to represent the interests of
agriculture, fishery or industry or trade or any other interest which,
in the opinion of the Central Government, ought to be represented;

(e) two persons to represent the companies or corporations owned,

controlled or managed by the Central Government, to be nominated by
that Government;
e
[(f) a full-time member-secretary, possessing qualifications,
knowledge and experience of scientific, engineering or management
aspects of pollution control, to be appointed by the Central
Government.]

(3) The Central Board shall be a body corporate with the name
aforesaid having perpetual succession and a common seal with power,
subject to the provisions of this Act, to acquire, hold and dispose of
property and to contract, and may, by the aforesaid name, sue or be
sued.

Section 4 states: Constitution of State Boards.—(1) The State

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

(2) A State Board shall consist of the member, namely:

(a) a h[***] chairman, being a person having special knowledge or

practical experience in respect of i[matters relating to environmental
protection] or a person having knowledge and experience in
administering institutions dealing with the matters aforesaid, to be
nominated by the State Government:
j
[Provided that the chairman may be either whole-time or part-
 pollution and prevention, control or abatement of water
pollution7;

(iv) organise through mass media a comprehensive programme for the

prevention and control of water pollution8, etc.

The Central Board also performs the functions of a State Board for the
Union Territories. In case of conflict of authority between the Central Board
and the State Board, the authority of the Central Board prevails over the
authority of the State Board. The Central Board is attached to the Union
Government’s Department of Environment, Forests and Wild life.

time as the State Government may think fit;]

(b) k[such number of officials, not exceeding five,] to be

nominated by the State Government to represent that
Government;

(c) I[such number of persons, not exceeding five,] to be nominated

by the State Government from amongst the members of the local
authorities functioning within the State;

(d) m[such number of non-officials, not exceeding three,] to be

nominated by the State Government to represent the interests of
agriculture, fishery or industry or trade or any other interest which,
in the opinion of the State Government, ought to be represented;

(e) two persons to represent the companies or corporations

owned, controlled or managed by the State Government, to be
nominated by that Government;
n
[(f) a full-time member-secretary, possessing qualifications,
knowledge and experience of scientific, engineering or management
aspects of pollution control, to be appointed by the State Government.]

(c) Substituted by section 3, Act 44 of 1978 for ‘five officials’.

(d) Substituted by section 3, Act 44 of 1978 for ‘three non-officials’.

(e) Substituted by section 3, Act 53 of 1988 for clause (f).

(f) Certain words omitted by section 4, Act 44 of 1978.

(g) Substituted by section 4, Act 53 of 1988 for ‘State Board’ (wef 29

September 1988).

(h) The word ‘full-time’ omitted by section 4, Act 44 of 1978.

2. Functions of the State Board

The functions of the State Boards, inter alia, include:

(i) to plan a comprehensive programme for the prevention, control or

abatement of pollution of streams and wells in the State and to
secure the execution thereof;9

(ii) to advise the State Government on any matter concerning the

prevention or control or abatement of water pollution10;

(i) Substituted by section 4, Act 44 of 1978, for certain words.

(j) Inserted by section 4, Act 44 of 1978.

(k) Substituted by section 4, Act 44 of 1978 for ‘five officials’.

(1) Substituted by section 4, Act 44 of 1978 for ‘five persons’.

(m) Substituted by section 4, Act 44 of 1978 for ‘three non-officials’.

(n) Substituted by section 4, Act 53 of 1988, for clause (f).

(3) Every State Board shall be a body corporate with the name
specified by the State Government in the notification under sub-section
(1), having perpetual succession and a common seal with power, subject to
the provisions of this Act, to acquire, hold and dispose of property and to
contract, and may, by the said name, sue or be sued.

(4) Notwithstanding anything contained in this section, no State

Board shall be constituted for a Union territory and in relation to a Union
territory, the Central Board shall exercise the powers and perform the
functions of a State Board for that Union territory:

Provided that in relation to any Union territory the Central Board may
delegate all or any of its powers and functions under this sub-section to
such person or body of persons as the Central Government may specify.
5
.Section 16 of the Water (Prevention and Control of Pollution) Act
1974 states: Functions of Central Board.—(1) Subject to the
provisions of this Act, the main function of the Central Board shall
be to promote cleanliness of streams and wells in different areas of
the States.

(2) In particular and without prejudice to the generality of the

foregoing function, the Central Board may perform all or any of the
following functions, namely:
 (iii) to inspect sewage or trade effluents, works and plants for the
treatment of sewage or trade effluent11;

(iv) to lay down, modify or annul effluent standards for the sewage
or trade effluents12;

(v) to evolve economical and reliable methods of treatment of

sewage or trade effluents13;

(vi) to evolve methods of utilisation of sewage and suitable trade

effluents in agriculture14;

(a) advise the Central Government on any matter concerning the

prevention and control of water pollution;

(b) co-ordinate the activities of the State Boards and resolve disputes
among them;

(c) provide technical assistance and guidance to the State Boards,

carry out and sponsor investigations and research relating to problems
of water pollution and prevention, control or abatement of water
pollution;

(d) plan and organise the training of persons engaged or to be

engaged in programmes for the prevention, control or abatement of water
pollution on such terms and conditions as the Central Board may
specify;

(e) organise through mass media a comprehensive programme

regarding the prevention and control of water pollution;

°[(ee) perform such of the functions of any State Board as may be

specified in an order made under sub-section (2) of section 18;]

(f) collect, compile and publish technical and statistical data relating
to water pollution and the measures devised for its effective prevention
and control and prepare manuals, codes or guides relating to treatment
and disposal of sewage and trade effluents and disseminate information
connected therewith;

(g) lay down, modify or annul, in consultation with the State

Government concerned, the standards for a stream or well:

Provided that different standards may be laid down for the same stream
or well or for different streams or wells, having regard to the quality of
water, flow characteristics of the stream or well and the nature of the use
of the water in such stream or well or streams or wells;
 (vii) to evolve efficient methods of disposal of sewage and trade
effluents on land15;

(viii) to lay down standards of treatment of sewage and trade

effluents to be discharged into any particular stream16;

(ix) to lay down effluent standards to be complied with by persons

while causing discharge of sewage or sullage17;

(x) to advise the State Government with respect to location of any

industry the carrying on of which is likely to pollute stream or

(h) plan and cause to be executed a nation-wide programme for the

prevention, control or abatement of water pollution;

(i) perform such other functions as may be prescribed.

(3) The Board may establish or recognise a laboratory or laboratories

to enable the Board to

(o) Inserted by section 8, Act 53 of 1988 (wef 29 September 1988)

perform its functions under this section efficiently, including the analysis
of samples of water from any stream or well or of samples of any
sewage or trade effluents.
6
. Section 16 (2)(b).
7
. Section 16 (2)(c).
8
. Section 16 (2)(e).
9
. Ibid., Section 17 (l)(a).
10
.Section 17 states: Functions of State Board.—(1) Subject to the
provisions of this Act, the functions of a State Board shall be—

(a) to plan a comprehensive programme for the prevention, control or

abatement of pollution of streams and wells in the State and to secure
the execution thereof;

(b) to advise the State Government on any matter concerning the

prevention, control or abatement of water pollution;

(c) to collect and disseminate information relating to water pollution

and the prevention, control or abatement thereof;

(d) to encourage, conduct and participate investigations and research

relating to problems of water pollution and prevention, control or
abatement of water pollution;

(e) to collaborate with the Central Board in organising the training of

 well18;

(xi) and to perform such other functions as may be entrusted to it by

the Central Government or the State Government19.

In case, the Central Government is of the opinion that the State Board
has defaulted in complying with any directions given by the Central
Board and as a result of such default, a grave emergency has arisen and
it is necessary or expedient so to do in the public interest, it may direct
the Central Board to perform any of the functions of the State Board20.
In addition, the State Board possesses other important powers also.

persons engaged or to be engaged in programmes relating to prevention,

control or abatement of water pollution and to organise mass education
programmes relating thereto;

(f) to inspect sewage or trade effluents, works and plants for the treatment of
sewage and trade effluents and to review plans, specifications or other data relating to
plants set up for the treatment of water, works for the purification thereof and the
system for the disposal of sewage or trade effluents or in connection with the grant of
any consent as required by this Act;

(g) to lay down, modify or annul effluent standards for the sewage and trade
effluents and for the quality of receiving waters (not being water in an inter-State
stream) resulting from the discharge of effluents and to classify waters of the State;

(h) to evolve economical and reliable methods of treatment of sewage

and trade effluents, having regard to the peculiar conditions of soils,
climate and water resources of different regions and more especially the
prevailing flow characteristics of water in streams and wells which render
it impossible to attain even the minimum degree of dilution;

(i) to evolve methods of utilisation of sewage and suitable trade

effluents in agriculture;

(j) to evolve efficient methods of disposal of sewage and trade effluents

on land, as are necessary on account of the predominant conditions of
scant stream flows that do not provide for major part of the year the
minimum degree of dilution;

(k) to lay down standards of treatment of sewage and trade effluents to

be discharged into any particular stream taking into account the minimum
fair weather dilution available in that stream and the tolerance limits of
pollution permissible in the water of the stream, after the discharge of
such effluents;

(1) to make, vary or revoke any order—

(i) for the prevention, control or abatement of discharges of waste into

The problems have arisen in the past due to lack of efforts of the
Pollution Control Boards and the Government to prevent or control
water pollution. What should be done if the Pollution Control
Boards and the Government do not discharge their functions
entrusted to them under the Water (Prevention and Control of
Pollution) Act 1974? The problem of pollution of sacred river Ganga
was highlighted in the Supreme Court in MC Mehta v Union of India21
(Tanneries) case. Water is the most important of the elements of the
nature. River valleys are the cradles of civilisation from the beginning
of the world. It is a popular belief that the river Ganga is the purifier of
souls. There are today large towns inhabited by millions of people on

streams or wells;

(ii) requiring any person concerned to construct new systems for the
disposal of sewage and trade effluents or to modify, alter or extend any
such existing system or to adopt such remedial measures as are
necessary to prevent, control or abate water pollution;

(m) to lay down effluent standards to be compiled with by persons

while causing discharge of sewage or sullage or both and to lay down,
modify or annul effluent standards for the sewage and trade effluents;

(n) to advise the State Government with respect to the location of any
industry the carrying on of which is likely to pollute a stream or well;

(o) to perform such other functions as may be prescribed or as may from

time to time, be entrusted to it by the Central Board or the State
Government.

(2) The Board may establish or recognise a laboratory or laboratories to

enable the Board to perform its functions under this section efficiently
including the analysis of samples of water from any stream or well or
samples of any sewage or trade effleunts’.
11
. Section 17 (l)(f).
12
. Section 17 (l)(g).
13
. Section 17 (l)(h).
14
. Section 17 (1)(i).
15
. Section 17 (1)(j).
16
. Section 17 (1)(k).
17
. Section 17 (l)(m).
18
. Section 17 (l)(n).
19
. Section 17 (l)(o).
20
. Section 18 (2) states: Powers to give direction—Where the Central
Government is of the opinion that any State Board has defaulted in
complying with any directions given by the Central Board under sub-
section (1) and as a result of such default a grave emergency has arisen
and it is necessary or expedient so to do in the public interest, it may, by
the banks of the river Ganga. There are also large industries on its
banks. Sewage of the towns and cities on the banks of the river and
trade effluents of the factories and other industries are continuously
being discharged into the river. The petitioner has initiated the present
public interest litigation to restrain the respondents from letting out the
trade effluents into the river Ganga till such time the industries
(Tanneries) put up necessary treatment plants for treating the trade
effluents in order to arrest the pollution of water in the river Ganga. It is
submitted that effluent discharged from a tannery is ten times noxious
when compared with the domestic sewage water which flows into the
river from any urban area on its banks. One of the functions of the
State Board under sections 16 and 17 of the Water (Prevention and
Control of Pollution) Act is to inspect sewage or trade effluents, work
and plant for the treatment of sewage and trade effluents, and to review
plans, specifications or other data relating to plants set up for the
treatment of water, works for the purification and the system for the
disposal of sewage or trade effluents. Trade effluent22 includes:

Any liquid, gaseous or solid substances which are discharged from any
premises used for carrying on any p[industry operation or process or treatment
and disposal system] other than domestic sewage.

The State Board is also entrusted with the work of laying down
standards of treatment of sewage and trade effluents to be discharged
into any particular stream taking into account the minimum fair
weather dilution available in that stream and the tolerance limits of
pollution permissible in the water of the stream, after the discharge of
such effluents. The State Board has the power of making application to
the courts for restraining the apprehended pollution of water in stream
or well. The Supreme Court observed that notwithstanding the
comprehensive provisions contained in the Act, no effective steps
appear to have been taken by the State Board to prevent the discharge
of effluents into river Ganga. The Court further pointed out that the
fact that the effluents were first discharged into the municipal sewerage
would not absolve the tanneries from being proceeded against because
ultimately the effluents reached the river Ganga from the sewerage
system of the municipality.

In addition to the Water (Prevention and Control of Pollution) Act

order, direct the Central Board to perform any of the functions of the State
Board in relation to such area for such period and for such purposes, as
may be specified in the order.
21
. AIR 1988 SC 1037.
22
.Section 2 (K) of the Water (Prevention and Control of Pollution
Act).

(p) Substituted by section 2, Act 53 of 1988 for ‘trade or industry’.

1974, the Parliament has also passed the Environment (Protection) Act
1986. Section 3 of this Act confers power on the Central Government.
It states that:

Subject to the provisions of this Act, the Central Government shall

have the power to take all such measures as it deems necessary or
expedient for the purpose of protecting or improving the quality of the
environment and preventing, controlling and abating environmental
pollution.

Environment includes:

Water, air and land and the inter-relationship which exists among and
between water, air and land and human beings, other living
creatures, plants, micro-organism and property.

The Supreme Court observed that not much had been done even by
the Central Government under the Environment (Protection) Act 1986,
to stop the grave public nuisance caused by the tanneries.

The Court held that having regard to the adverse effects of the
effluents on the river water, the tanneries should at least set up the
primary treatment plants. It was submitted that the cost of pre-
treatment plant for ‘A’ class-tannery would be rupees 368000, the cost
of plant for class ‘B’ tannery would be rupees 230000 and the cost of
the plant for ‘C’ class-tannery would be rupees 50000. The Court
emphatically stated that the cost did not appear to be excessive. The
Supreme Court stated in the present case, the tanneries involved were
not taken by surprise because for several years, they were being asked
to take necessary steps to prevent the flow of untreated waste from their
factories into the river. Some of the tanneries complied with the
demand and installed treatment plants whereas others took the plea
based on financial constraints. The Court, therefore, issued directions
for the closure of those tanneries which failed to take the minimum
steps required for the primary treatment of the industrial effluents. The
Court expressed consciousness that the closure of tanneries may bring
unemployment, loss of revenue, but life, health and ecology have
greater importance to the people. The Court directed the Central
Government, the UP Pollution Control Board established under the
Water (Prevention and Control of Pollution) Act 1974 and the District
Magistrate, Kanpur to enforce the order faithfully. The Court held:

The financial capacity of the tanneries should be considered as irrelevant

while requiring them to establish primary treatment plants just like an
industry which cannot pay minimum wages to its workers cannot be
allowed to exist, a tannery which cannot set up a primary treatment
plant cannot be permitted to continue to be in existence for the adverse
effect on the public at large which is likely to ensue by discharging of the
 trade effluents from the tannery to the river Ganga would be immense
and it will outweigh any inconvenience that may be caused to the
management and the labour employed by it on account of its closure.

The problem of the pollution of river Ganga by the inaction of the

municipalities was brought to light in MC Mehta v Union of India
(Municipalities)23. Public interest litigation was initiated to prevent the
nuisance caused by the pollution of river Ganga due to non-
performance of duties by the Central Government, Pollution Control
Boards and the municipalities. None took any action to prevent the
pollution of the river Ganga notwithstanding the duties imposed on
them under the Water (Prevention and Control of Pollution) Act 1974,
and the Environment (Protection) Act 1986. It is unfortunate that
despite statutory duties imposed on the Central and the State Boards
under environmental law for the prevention and control of pollution of
water, these bodies do not discharge their duties. The introduction of
modern water carriage systems transferred the sewage disposal from
the streets and the surroundings of townships to neighbouring streams
and rivers. It is ironic that the man, from the earliest times, has tended
to dispose of his wastes in the very streams and rivers from which most
of his drinking water is drawn. The problem of pollution of natural
water is reaching alarming proportions with the rapid urbanisation and
industrialisation. Cities and industries discharge their untreated or only
partially treated sewage and industrial wastes into neighbouring
streams. By so doing, they create intense pollution in streams and rivers
and expose the downstream riparian population to dangerously
unhygienic conditions. The Supreme Court has upheld the right of the
petitioner to move the court by way of the present public interest litigation to
enforce the statutory provisions which impose duties on municipal authorities
and the Boards constituted under the Water (Prevention and Control of
Pollution) Act. The Kanpur municipality has been held by the Supreme Court
to bear the major responsibility for the pollution of the river near Kanpur.

The Supreme Court noted that the construction of certain works has
been undertaken under the Ganga Action Plan at Kanpur in order to improve
the sewerage system and to prevent pollution of the water in river Ganga.
However, the affidavits filed by the authorities in this case reveal that the
works are going on at snail’s pace. In order to control and prevent the
pollution of water in the river Ganga at Kanpur, the Supreme Court issued
certain directions for compliance by the Kanpur municipality and other
authorities. These directions have been summarised as under:

1. It is seen that the Kanpur municipal corporation is taking certain

steps but not with sufficient speed. It is noticed that the municipal
corporation has not submitted its proposals for sewage treatment
23
. AIR 1988 SC 1115.
(q) Section 18 re-numbered as sub-section (1) by section 9, Act 53 of 1988
(wef 29 September 1988).
 works to the State Board constituted under the Water (Prevention
and Control of Pollution) Act. The municipal corporation should
submit its proposals to the State Board within six months.
2. Appropriate steps be taken to prevent pollution of water on account
of wastes accumulated near the diaries in Kanpur in which there
are about 80,000 cattle.
3. The municipal corporation should take immediate steps to
increase the size of the sewage in the labour colonies so that the
sewage may be carried smoothly through the sewerage system.
Wherever the sewerage line is not yet constructed, steps should be
taken to lay it.
4. Immediate action should be taken by the Kanpur municipality to
construct sufficient number of public latrines and urinals for free
use of the poor people in order to prevent defecation by them on
the open land.
5. The Supreme Court gave due regard to the submission that
whenever the Board constituted under the Water (Prevention and
Control of Pollution) Act initiates any proceedings to prosecute
industrialists or other persons who pollute the water in the river
Ganga, the persons accused of the offences immediately institute
petitions under section 482, CrPC. in the High Courts and obtain
stay orders thus frustrating the attempt of the Board to enforce the
provisions of the Water (Prevention and Control of Pollution)
Act. In the opinion of the Supreme Court, since the problem of
pollution of water in the river Ganga has become very acute, the
High Courts should not ordinarily grant the orders of stay of
criminal proceedings in such cases and even if an order of stay is
made in an extraordinary case, the High Courts should dispose of
the case within a short period, say about two months from the
date of institution of such cases.
6. Steps shall be taken by the Kanpur municipal corporation and the
police authorities to ensure that dead bodies or half burnt bodies
are not thrown into the river Ganga.
7. Licences should not be issued to establish new industries unless
adequate provisions have been made by them for the treatment of
trade effluents flowing out of their factories. Immediate action
should be taken against existing industries if they are found
responsible for the pollution of water.
8. Central Government should direct all educational institutions to
include the subject of national environment in text books.
9. To make people aware of the importance of cleanliness and
hazards of pollution. ‘Keep city/village clean’ weeks should be
observed.

10. The directions given to Kanpur municipal corporation apply

mutatis mutandis to other municipal corporations and
municipalities.
II. POWER TO GIVE DIRECTIONS

Section 18q of the Water (Prevention and Control of Pollution) Act

deals with the power to give directions.

Sub-section (1) provides that:

In the performance of its functions under this Act—

(a) the Central Board shall be bound by such directions in writing

as the Central Government may give to it.
(b) Every State Board shall be bound by such directions in writing as
the Central Board or the State Government may give to it.

However, in a case where direction given by the State Government

is inconsistent with the direction given by the Central Board, the matter
shall be referred to the Central Government for its decision. Sub-
section (2) states that in a case by order:

Where the Central Government is of the opinion that under State Board
has defaulted in complying with the directions given by the Central
Board under sub-section (1) and as a result of such default, a grave
emergency has arisen and it is necessary or expedient so to do in the
public interest, it may by order, direct the Central Board to perform any
of the functions of the State Board in relation to such area for such
period and for such purposes, as may be specified in the order.

III. PREVENTION AND CONTROL OF WATER POLLUTION

1. Water Pollution Control Areas

Section 19(1) of the Water (Prevention and Control of Pollution) Act

states that:

Notwithstanding anything contained in the Act, if the State

Government, after consultation with, or on the recommendation of,
the State Board, is of the opinion that the provisions of the Act need
not apply to the entire State, it may, by notification in the Official
Gazette, restrict the application of this Act to such area or areas as
may be declared therein as water pollution, prevention and control
area or areas and thereupon the provisions of the Act shall apply to
such area or areas.

Thus, the State Government has the power to designate any area or
areas within a State as water pollution control area or areas after
consultation with the State Board or on the recommendation of the
State Board. The State Government may also alter by way of extension
or reduction any pollution control area or areas by notification in the
Official Gazette.

2. Power to Obtain Information

Section 20 of the Act deals with the power of the State Board to obtain
information required for the performance of its functions.

Sub-section (1) empowers the State Board to make surveys of any

area and gauge and keep records of the flow or volume or other
characteristics of the stream or well in the area.

Sub-section (2) empowers the State Board to require any person to

give information concerning abstraction or discharge of sewage or
trade effluent into stream or well in a case where such person, in the
opinion of the State Board, is abstracting water from any such stream
or well or is discharging sewage or trade effluent into such stream or
well.

To prevent or control pollution, State Board, under sub-section (3),

has the power to give directions requiring any person incharge of any
establishment to furnish information regarding construction,
installation or operation of such establishment or of any disposal
system or of any extension or addition in such establishment.

3. Samples of Effluents – Procedure

Section 21 of the Act contains procedure for taking samples of trade or

sewage effluents for the purpose of analysis. State Board or its
authorised officer is empowered to take samples of sewage or trade
effluent for the purpose of analysis 24. The result of the analysis of
sewage or trade effluent shall not be admissible in evidence in any
legal proceedings unless the following procedure is followed25:
24
. Section 21 (1) Water (Prevention and Control of Pollution) Act
1974 states: Power to take samples of effluents and procedure to be
followed in connection therewith – A State Board or any officer
empowered by it in this behalf shall have power to take for the purpose of
analysis samples of water from any stream or well or samples of any
sewage or trade effluent which is passing from any plant or vessel or
from or over any place into any such stream or well.
25
. Section 17 (2) and 21 (2).

Section 17(2) of the Water (Prevention and Control of Pollution) Act 1974 states:
Functions of State Board – The Board may establish or recognise a laboratory or
laboratories to enable the Board to perform its functions under this section efficiently,
including the analysis of samples of water from any stream or well or of samples of
any sewage or trade effluents.

Section 21(2) states: Power to take samples of effluents and procedure to be

 The person taking the sample of the sewage or trade effluent shall
serve on the occupier a notice in the prescribed form of his intention to
have it analysed. The sample shall be divided into two parts in the
presence of the occupier. Each part of the sample shall be placed in a
container which shall be marked, sealed and signed by the person taking the
sample as well as the occupier. One container shall be sent to the laboratory
recognised by the Central Board in case of Union Territory or to the
laboratory recognised by the State Board in case of the State. On request of
the occupier, the second container shall be sent to the laboratory recognised by
the Central Government in case of Union Territory or to the laboratory
recognised by the State Government in case of State. If the occupier
willfully abstains himself irrespective of the service of notice, the sample
shall be placed in a container which shall be marked, sealed and signed by
the person taking the sample26. The container shall be sent to the laboratory

followed in connection therewith – The result of any analysis of a sample of any

sewage or trade effluent taken under sub-section (1) shall not be admissible in
evidence in any legal proceeding unless the provisions of sub-sections (3), (4) and
(5) are complied with.

26
. Ibid., Section 21 (4).

Section 21 of the Water (Prevention and Control of Pollution) Act

states: Power to take samples of effluents and procedure to be followed in
connection therewith.—(1) A State Board or any officer empowered by it
in this behalf shall have power to take for the purpose of analysis samples
of water from any stream or well or samples of any sewage or trade
effluent which is passing from any plant or vessel or from or over any
place into any such stream or well.

(2) The result of any analysis of a sample of any sewage or trade

effluent taken under sub-section (1) shall not be admissible in evidence in
any legal proceeding unless the provisions of sub-sections (3), (4) and (5)
are compiled with.

(3) Subject to the provisions of sub-sections (4) and (5), when a

sample (composite or otherwise as may be warranted by the process used)
of any sewage or trade effluent is taken for analysis under sub-section (1),
the person taking the sample shall—

(a) serve on the person in charge of, or having control over, the plant
or vessel or in occupation of the place (which person is hereinafter
referred to as the occupier) or any agent of such occupier, a notice, then
and there in such form as may be prescribed of his intention to have it so
analysed;

(b) in the presence of the occupier or his agent, divide the sample
into two parts;
recognised by the Central Government in case of Union Territory or the
laboratory recognised by the State Government in case of State27. In such a
case, the person taking the sample shall also inform the Government analyst in
writing about the willful absence of the occupier28.

In a case where the sample is taken for analysis, the occupier is served a
notice but if the occupier does not make a request for division of the sample
into two parts, the sample shall be placed in a container which shall be
marked, sealed and signed by the person taking the sample29. The said
container shall be sent for analysis to the laboratory recognised by the Central
Board in case of Union Territory or the State Board in case of State.

(c) cause each part to be placed in a container which shall be marked

and sealed and shall also be signed both by the person taking the sample
and the occupier or his agent;

(d) send one container forthwith,—

(i) in a case where such sample is taken from any area situated in a
Union territory, to the laboratory established or recognised by the
Central Board under section 16; and

(ii) in any other case, to the laboratory established or recognised by the

State Board under section 17;

(e) on the request of the occupier or his agent, send the second
container,—

(i) in a case where such sample is taken from any area situated in a
Union territory, to the laboratory established or specified under sub-
section (1) of section 51; and

(ii) in any other case, to the laboratory established or specified under

sub-section (1) of section 52.
r
(4) When a sample of any sewage or trade affluent is taken for
analysis under sub-section (1) and the person taking the sample serves on
the occupier or his agent, a notice under clause (a) of sub-section (3) and
the occupier or his agent wilfully absents himself, then,—

(a) the sample so taken shall be placed in a container which shall be

marked and sealed and shall also be signed by the person taking the
sample and the same shall be sent forthwith by such person for analysis to
the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case
may be, of clause (e) of sub-section (3) and such person shall inform the
Government analyst appointed under

(r) Substituted by section 10, Act 44 of 1978.

 The sample so collected shall be analysed by the Board analyst who shall
submit a report in the prescribed form in triplicate to the Central or State
Board as the case may be30. Likewise, the Government analyst shall also
submit his report in triplicate to the Central or State Board in case the second
container is sent to him for analysis31. In case of inconsistency between two
reports, the report of the Government analyst will prevail.32 On receipt of the
report by the Board, one copy should be sent to the occupier, second copy
shall be preserved for production before court in case of legal proceedings,
and the third copy shall be kept by the Board33.

The procedure for the collection of the sample of sewage or trade effluent

sub-section (1) or sub-section (2), as the case may be, of section 53, in
writing about the wilful absence of the occupier or his agent; and

(b) the cost incurred in getting such sample analysed shall be payable
by the occupier or his agent and in case of default of such payment, the
same shall be recoverable from the occupier or his agent, as the case may
be, as an arrear of land revenue or of public demand:

Provided that no such recovery shall be made unless the occupier or,
as the case may be, his agent has been given a reasonable opportunity of
being heard in the matter.]

(5) When a sample of any sewage or trade effluent is taken for analysis
under sub-section (1) and the person taking the sample serves on the
occupier or his agent a notice under clause (a) of sub-section (3) and the
occupier or his agent who is present at the time of taking the sample does
not make a request for dividing the sample into two parts as provided in
clause (b) of sub-section (3), then, the sample so taken shall be placed in a
container which shall be marked and sealed and shall also be signed by the
person taking the sample and the same shall be sent forthwith by such
person for analysis to the laboratory referred to in sub-clause (i) or sub-
clause (ii), as the case may be, of clause (d) of sub-section (3).
27
. Ibid.
28
. Ibid.
29
. Section 21 (5).
30
. Section 22 (1).

Section 22 of the Water (Prevention and Control of Pollution) Act

1974 states: Reports of the result of analysis on samples taken under
section 21.— (1) Where a sample of any sewage or trade effluent has
been sent for analysis to the laboratory established or recognised by the
Central Board or, as the case may be, the State Board, the concerned
Board analyst appointed under sub-section (3) of section 53 shall analyse
the sample and submit a report in the prescribed form of the result of such
analysis in triplicate to the Central Board or the State Board as the case
has been given such an importance that the result of the analysis of the
sample shall not be admissible in evidence if the said procedure is not
followed.

4. Power of Entry and Inspection

Section 23 of the Act confers wide powers on the State Board to enter and
inspect any place to ensure compliance with the Act. The power extends
even to seizure of the records from any undertaking. The State Board has the
power to authorise any person to enter and inspect any place for the purpose
of performance of any of the functions of the Board or determining whether
the provisions of the Act are being complied with34. Such authorised person
has the right to enter with the assistance necessary for the purpose of

may be.

(2) On receipt of the report under sub-section (1), one copy of the report shall be
sent by the Central Board or the State Board, as the case may be, to the occupier or
his agent referred to in section 21, another copy shall be preserved for production
before the court in case any legal proceedings are taken against him and the other copy
shall be kept by the concerned Board.

(3) Where a sample has been sent for analysis under clause (e) of sub-section (3) or
sub-section (4) of section 21 to any laboratory mentioned therein, the Government
analyst referred to in that sub-section shall analyse the sample and submit a report in the
prescribed form of the result of the analysis in triplicate to the Central Board or, as the
case may be, the State Board which shall comply with the provisions of sub-section (2).

(4) If there is any inconsistency or discrepancy between, or variation in the

results of, the analysis carried out by the laboratory established or recognised by the
Central Board or the State Board, as the case may be, and that of the laboratory
established or specified under section 51 or section 52, as the case may be, the report
of the latter shall prevail.

(5) Any cost incurred in getting any sample analysed at the request of the occupier
or his agent shall be payable by such occupier or his agent and in case of default the same
shall be recoverable from him as arrears of land revenue or of public demand.

31
. Ibid., Section 22 (3).
32
. Ibid., Section 22 (4).
33
. Ibid., Section 22 (2).
34
. Ibid., Section 23 (1)(a) and Section 23 (1)(b).

Section 23 states: Power of entry and inspection—(1) Subject to the

provisions of this section, any person empowered by a State Board in this
behalf shall have a right at any time to enter, with such assistance as he
considers necessary, any place—

(a) for the purpose of performing any of the functions of the Board entrusted to him;
examining any plant, record, register, document or any other material object
or for conducting a search of any place in which he has reason to believe that
an offence under this Act or the rules made thereunder has been or is being or
is about to be committed and for seizing any such plant, record, register,
document or other material object, if he has reason to believe that it may
furnish evidence of the commission of an offence punishable under this
Act or the rules made thereunder. The relevant provisions of the Criminal
Procedure Code shall apply to the search or seizure conducted under this
Act.

5. Prohibition for Disposal of Polluting Matter

Section 24 of the Act prohibits the use of stream or well for disposal of
polluting matter sub-section (1) provides.

Subject to the provisions of this section (a) no person shall

knowingly cause or permit any poisonous, noxious or polluting
matter determined in accordance with such standards as may be laid
down by the State Board to enter (whether directly or indirectly) into
any s[stream or well or sewer or on land].

Likewise sub-clause (b) provides:

no person shall knowingly cause or permit to enter into any stream

any other matter which may tend either directly or in combination
with similar matters, to impede the proper flow of water in the
stream in a manner leading or likely to lead to a substantial
aggravation of pollution due to other causes or of its
consequences.

However, the Government has the power to exempt any person from
the operation of the above prohibitory clause by notification in the
Official Gazette.

The attention of the Supreme Court was drawn to the question of

violation of section 24 of the Water (Prevention and Control of
Pollution) Act in MC Mehta v Kamal Nath35. In this case, the Supreme
Court has passed various orders. The case involves the issue of various

(b) for the purpose of determining whether and if so in what manner, any such
functions are to be performed or whether any provisions of this Act or the rules made
thereunder or any notice, order, direction or authorisation served, made, given, or granted
under this Act is being or has been complied with;

35
. AIR 2002 SC 1515. Earlier orders passed by the Supreme Court
have been reported as (1997) 1 SCC 388; AIR 2000 SC 1997.
(s) Substituted by section 11, Act 53 of 1988 for ‘stream or well’ (wef 29
September 1988).
constructions made by the Span Motels (P) Ltd, on the riverbed and on
the banks of the river Beas which not only resulted in the pollution of
the river but constituted an onslaught on the fragile environment and
ecology of Manali in the State of Himachal Pradesh. The Supreme
Court also found that the Motel by constructing walls and bunds on the
river banks and in the riverbed has interfered with the flow of the river.
While the Court was conscious of the violation of section 24 of the
Water (Prevention and Control of Pollution) Act and non compliance
with section 3 of the Environment (Protection) Act, the Court preferred
to desist from pronouncing on the issue of the violation of these
provisions in a writ petition filed under article 32 of the Constitution of
India. The Court reaffirmed its earlier ruling that pollution is a civil
wrong – a tort committed against the community as a whole and
therefore, a person guilty of causing pollution has to pay damages
(compensation) for the restoration of environment and ecology as well
as compensation of those who suffered loss on account of the act of the
offender. The Court also reaffirmed that it had the power to award not
only damages but even exemplary damages in a writ petition or public
interest litigation but had no power to impose punishment by way of
fine or imprisonment which would be possible only after trial of the
offender. After holding Himachal Pradesh Government guilty of
committing patent breach of public trust by leasing the ecological
fragile land to the motel, the Court held that the ‘polluter pays
principle’ with liability for harm to compensate not only the victims of
pollution but also the cost of restoring the environmental degradation
and reversing the damaged ecology would be applicable in this case.
The Motel, by constructing walls and bunds on the river banks and in
the riverbed, has been held to have interfered with the flow of the river
and therefore, the liability of the motel would be an inevitable
consequence of polluter pays principle. The Supreme Court exercised its
power to award exemplary damages which were fixed at rupees ten
lakhs. The Court further stated that the question relating to the quantum
of liability for damages on the polluter pays principle, as has been held
by the Court against Span Motels (P) Ltd would be determined
separately. The Court did not consider the question of imposition of
imprisonment and fine provided under various laws to prevent and
control pollution in the present proceedings which were initiated by
way of writ petition.

6. Consent Procedure or Permit System

Section 25 and Section 26 of the Act provide for consent procedure or

permit system to prevent and control water pollution. Section 25, sub-
section (1) requires a person to obtain the consent from the State Board
before taking steps to establish any industry, operation or process, any
treatment and disposal system or any extension or addition thereto to
such a system which might result in the discharge of sewage or trade
effluent into a stream, well or sewer or into land. Sub-section (2)
provides that an application for the consent of the State Board must be
made on the prescribed form and accompanied with prescribed fee.
The Board may make such inquiry as it deems fit in respect of consent
application and shall follow the prescribed procedure. Sub-section (4)
empowers the Board to impose conditions while granting the consent
specifying the location, construction and use of the outlet as well as the
nature and composition of new discharge. In case of refusal of the
consent, the Board shall record reasons for refusal in writing. Sub-
section (6) requires that the Board shall maintain a register containing
the particulars of the consent orders which shall be open to the public
for inspection. Sub-section (7) provides that if no consent order or
refusal is given within the expiry of four months of the making of an
application to the State Board, the consent order shall be deemed to
have been given unconditionally. Sub-section (7) reads as follows:

The consent referred to in sub-section (1) shall, unless given or

refused earlier be deemed to have been given unconditionally on the
expiry of period of four months of the making of an application in
this behalf complete in all respects to the State Board.

Sub-section (7) of Section 25 makes it clear that the applicant has to

satisfy that the three conditions which would enable him to claim the
benefit under the said provision exist in his case. The three conditions
being:

First, the consent referred to in sub-section (1) shall not have been
given or refused earlier; secondly, period of four months ought to have
expired after making of the application; and thirdly, the application of the
applicant should be complete in all respects. On the existence of these
conditions, the permission is deemed to have been given unconditionally.

The consent of the State Board may also be granted to an industry,

operation or process which is established without the prior consent of the
State Board. The procedure for the grant of consent to a unit established in
the absence of prior consent of the Board is contained in sub-section (5) of
section 25 which provides as follows:

Where, without the consent of the State Board, any industry,

operation or process, or any treatment or disposal system or any
extension or addition thereto, is established, or any steps for such
establishment have been taken or a new or altered outlet is brought
into use for the discharge of sewage or the new discharge of sewage
is made, the State Board may serve on the person who has
established or taken steps to establish any industry, operation or
process, or any treatment or disposal system or any extension or
addition thereto, or using the outlet, or making the discharge, as the
case may be, notice imposing any such conditions as it might have
imposed on an application for its consent in respect of such
 establishment, such outlet or discharge.

Section 2636 of the Act provides that the abovementioned consent

procedure or permit system shall also apply in cases of persons
discharging any sewage or trade effluent before the commencement of
this Act.

The Act provides for stiff penalties for the violation of sections 24,
25 and 26 which shall be punishable with imprisonment for a term
which shall not be less than one year and six months but which may
extend to six years and with fine.

In Vijayanagar Educational Trust v KSPC Board, Bangalore37, the

petitioners were a registered trust constituted with the object of
imparting education by setting up schools, colleges and other
institutions and planned to establish medical college and hospital. On
27 November 1999, the petitioners moved an application before the
Karnataka State Pollution Control Board for the grant of consent for
setting up medical college and hospital. The Board did not take any
action and sat till 9 February 2000 on which date the Board wrote a
letter to the petitioners to co-ordinate with the Board and organise for a
site inspection. The letter was responded to by the petitioners on 26
February 2000, expressing readiness to go along with the officers of
the Board to the spot for inspection of the premises. Nothing transpired
after that and the Board took no steps in the matter to either grant or
refuse the required permission. In the meantime, the petitioners began
construction of the hospital and college building. On 28 May 2000, a
news item was published in the Indian Express newspaper that the said
construction would pollute river Kumudavathi and the reservoir
Thippagondanahali which was one of the major sources of drinking
water to Bangalore city. A public interest writ petition was also filed
before the Karnataka High Court on the basis of the said newspaper
report.
36
. Section 26 states: Provision regarding existing discharge of
sewage or trade effluent – Where immediately before the commencement
of this Act any person was discharging any sewage or trade effluent into a
t
[stream or well or sewer or on land], the provisions of section 25 shall, so
far as may be, apply in relation to such person as they apply in relation to
the person referred to in that section subject to the modification that the
application for the consent to be made under sub-section (2) of that section
u
[shall be made on or before such date as may be specified by the State
Government by notification in this behalf in the official Gazette].
37
. AIR 2002 Karnataka 123.

(t) Substituted by section 13, Act 44 of 1978 for ‘stream or well’.

(u) Substituted by section 13, Act 44 of 1978.

 The Board which was hitherto silent on the aspect of environmental
pollution, suddenly woke up after publication of the news item in the
newspaper and subsequent filing of the public interest litigation. On 9
June 2000, State Board issued an order refusing to grant permission to
the petitioners to establish medical college and hospital. On 3 July 2000,
the petitioners filed an appeal before the Appellate Authority against
the order of the Board dated 9 June 2000, refusing permission to set up
the hospital. The Appellate Authority dismissed the appeal on the
ground that the application of the petitioners was not complete in all
respects. Aggrieved by the orders of the State Board and the Appellate
Authority, the petitioners have preferred the present writ petition.

The petitioners argued that there was deemed consent by the Board
under section 25 (7) of the Act and therefore, the impugned order was
void and without jurisdiction. The petitioners submitted that they had no
occasion to make known their stand before the Board as the notice
contemplated under section 25 of the Act in terms of rule 33 was not
issued to them. It was also submitted that the finding recorded by the
Appellate Authority in its order that the application of the petitioners
was not complete in all respects was totally unfounded.

It was argued on behalf of the respondent Board that the petitioners

had no right of construction over a plot which was environmentally
sensitive in nature. It was submitted that when the very right to
construct itself was not available to the petitioners, the question of
deemed consent in their favour would not arise at all. Even assuming
for the sake of argument, submitted by the Board, that the petitioners
had deemed consent, hospital being a red category industry the
statutory benefit of deemed consent accrued to the petitioners and
would have to yield before the larger interest of the citizens, namely
right to clean water guaranteed under the Constitution of India.
Accordingly, the Board argued that there was no need for interference
with the orders of the Board.

Two issues arose in this case: (1) whether there was ‘deemed consent’
of the Board within the meaning of sub-section (7) of section 25 of the
Water (Prevention and Control of Pollution) Act; (2) whether the Board
even in the face of deemed consent could still refuse the grant of
permission under section 25 of the Act.

IV. ISSUE OF ‘DEEMED CONSENT’

The claim of the petitioners that there was deemed consent in the
present case was based on section 25 (7) of the Water (Prevention and
Control of Pollution) Act. It provides that the applicant has to satisfy
that the three factors must exist to enable him to claim the benefit
under the said provision. The three factors are:
 (1) the consent referred to in sub-section (1) shall not have been
given or refused earlier;
(2) a period of four months ought to have expired after making of the
application; and
(3) the application should be complete in all respects.

The facts of the present case reveal that the petitioners moved an
application for the grant of consent before the Board on 27 November
1999 and the Board passed order of refusal on 9 June 2000. The Board
passed order of refusal after six months, much after the deadline
prescribed under section 25 (7) of the Act. However, the Appellate
Authority rejected the appeal of the petitioners on the ground that the
application of the petitioners was not complete in all respects and
therefore, section 25 (7) would not come into play at all. The High
Court of Karnataka did not accept the observation of the Appellate
Authority that the application of the petitioners was not complete in all
respects. The High Court pointed out that right from the time of
presentation of the application till its refusal by the Board, nowhere
there was any reference either by the Board or by any other authority
with regard to the application being not complete in any respect. The
Court further stated that even in the letter dated 9 June 2000, by which
the permission was refused by the Board, the reasons given thereunder
did not mention the incomplete application as one of the grounds for
rejection of the application. The High Court expressed surprise over
the manner in which the Appellate Authority found that the application
was not complete in all respects and that the application became
complete for all purposes on 6 March 2000, when according to the
Appellate Authority, the site was inspected. The High Court found that
the date of inspection was also mentioned wrongly by the Appellate
Authority. The High Court held that the Appellate Authority had
proceeded on wrong assumption that the relevant date for calculating
the statutory period of four months would be from the date of
inspection and not from the date of presentation of the application. The
finding of the Appellate Authority was held to be bad both in law and
on facts. The High Court held that when the Board itself in its order
while refusing the permission did not mention the aspect of application
being not complete in all respects, it was not open for the Board or
even the Appellate Authority sitting in judgment over the order of the
Board to turn around and make out a new case altogether and reinforce
the order with any fresh reason which originally was not made a
ground for deciding the issue. Accordingly, it was held that there was
deemed consent in the present case.

1. Issue of Deemed Consent vis-a-vis Environment Protection

The second issue was whether the Board even in the face of deemed
consent in favour of the petitioner could still refuse the grant of
permission under section 25 of the Act. The issue involves several
questions relating to environment protection and the changing
environmental concepts which have given rise to precautionary principle,
polluter pays principle and above all sustainable development which
provides a via media to eradicate poverty and improve the carrying
capacity of the supporting ecosystems.

The present case did not involve the application of ‘polluter pays
principle’ because the hospital was still in the stage of inception. The
hospital not having commenced operations, the issue of grant of
consent would involve the applicability of precautionary principle. The
‘precautionary principle’, as a legal concept, has evolved in the
international environmental law and has now emerged as the law
governing the matters of environment and finds expression in articles
47, 48A and 51A(g) of the Constitution of India. The concept has now
come to be recognised as a part of the domestic law in India. The new
concept places the burden of proof on the developer to show that
establishment of an industry would not expose the environment to
serious or irreversible environment damage. In AP Pollution Control
Board v MV Nayudu38, the Supreme Court held that if an industry
poses ‘uncertain but non-negligible’ risks, then regulatory action is
justified. This will lead to the question as to what is ‘non-negligible
risk’? In such a case, the burden of proof is to be placed on those
attempting to alter the status quo. They are to discharge this burden by
showing the absence of a ‘reasonable ecological or medical concern’.
That is the required burden of proof. The result would be that if
insufficient evidence is presented by them to alleviate concern about the
level of uncertainty, then the presumption should operate in favour of
environmental protection.

The question in the present case would be whether the petitioner had
the opportunity to discharge the burden and present the evidence to
alleviate the concern about the level of uncertainty? To find the answer,
the Karnataka High Court examined the sequel of events that transpired
between the presentation of the application and its ultimate refusal by
the Board. The High Court pointed out that in all the circumstances of
the present case, the petitioner was never called upon nor was he
provided any opportunity to dispel any reasonable apprehension that
the Board may have had about the potential danger that the industry
would have caused. When it can be reasonably said that the
establishment of the hospital does pose an ‘uncertain’ risk to the
environment, it cannot be said applying the same yardstick of
‘reasonableness’ that the potential risk is negligible or non-negligible.

The Karnataka High Court distinguished the facts of the present

case from the facts of AP Pollution Control Board v MV Nayudu39
wherein the Apex Court had every reason to believe that the potential
38
. AIR 1999 SC 812.
39
. Ibid.
danger to the environment was ‘non-negligible’ whereas in the present
case, it could not be said even with a modicum of certainty that the risk
involved was ‘non-negligible’. In AP Pollution Control Board’s case,
the Apex Court despite being satisfied about the existence of some
danger to the environment had still thought it fit to obtain scientific
inputs from the specialists in the field to have a clear idea of the
quantum and nature of pollutants before adjudicating the issue of
pollution to environment. On the other hand, in the present case
remarked Karnataka High Court, the refusal of the Board was not
based on consideration of any such potential danger to environment
because the order did not make any reference to the pollutants that
might be emitted by the hospital and whether such pollutants would fall
within the category of ‘negligible’ or ‘non-negligible’ environmental
risk which consideration was absolutely essential when the issue had to
be determined on the basis of ‘precautionary principle’. The Karnataka
High Court further remarked that the order of the Appellate Authority
was also no better because even the Appellate Authority did not refer
to any pollutants and the nature of the potential risk to environment.

The Apex Court has pronounced that there must be some ‘non-
negligible’ potential damage to environment if the permission sought
could be refused. The Karnataka High Court was of the view that the
principle of ‘sustainable development’ would come into play in the
present case. Hospital being essential to improve quality of human life
should be permitted to be established subject to ensuring the carrying
capacity of the supporting ecosystem. In the present case, the area
concerned was not declared as a sensitive area by publication of the
required notification. The petitioners had the benefit of deemed
consent and it was not possible to ascertain any potential non-
negligible danger to the environment which would call for the
applicability of the precautionary principle. There was hardly anything
to show that the mandate of sustainable development was not complied
with. Moreover, the Board was not powerless in the matter because the
petitioners had already started the construction of medical college and
the hospital and had spent huge money. The Board could always resort
to sub-section (5) of section 25 to ensure that no ‘non-negligible
danger’ is caused to the environment by establishment of the college
and hospital.

The restriction imposed under sub-section (1) of section 25 is

subject to the provisions of sub-section (5) which provides for the
grant of permission even in a case where steps have been taken for
establishment of a new industry. Probably, the Legislature in its
wisdom had visualised a situation where an industry may be set up
without obtaining the prior consent of the Board and without providing
an adequate disposal or treatment system for the potential pollutants. In
order to cater to such a situation and to ensure that the environment is
not exposed to any danger by such industries going into operation
without prior consent from the Board, section 25 (5) has been enacted
so as to invest the Board with the same powers as under sub-section (3)
in the case of an industry seeking prior permission before establishment.
Therefore, it cannot be said that the Board is totally helpless in the case
of industries established without prior consent of the Board. Thus, the
Water (Prevention and Control of Pollution) Act provides for a
situation which specifically applies to the present case and the Board
ought to have followed the procedure contemplated under section 25
(5). The Board which is charged with the solemn duty of protecting the
environment had done precious little in discharge of its duty and had
displayed an indolent attitude in examining the request of the
petitioners for the grant of consent. It appeared to have woken up from
its bureaucratic slumber only after the filing of the public interest
litigation. This being a case where the steps had already been taken to
establish a new industry it would be covered under section 25 (5) of
the Water (Prevention and Control of Pollution) Act.

The Karnataka High Court held that it would be totally unjustified to

deny permission to establish an hospital merely on the ground of
potential hazard to the environment when there was nothing on record
either before the Board or before the Appellate Authority to show that
the uncertain danger to the environment was ‘non-negligible’. The
Court further held that in the present case, the Board was sufficiently
empowered by the provisions of the Water (Prevention and Control of
Pollution) Act to give directions to the hospital to protect the
environmental quality. A simple direction not to let the pollutants go
into the stream without proper treatment would have ensured
prevention of pollution. The High Court observed that the potential
danger, if any, could be overcome in the present case by directing the
petitioners to take all precautions required to be taken so that there
would not be any direct or indirect entry of sewerage effluents into the
stream or reservoir.

On the issue of giving directions to the National Environmental

Appellate Authority established under National Environmental Appellate
Authority Act 1997 to investigate the matter, Karnataka High Court felt
that there was no need for doing so because the question of reference to
the Authority would arise only after the establishment of the hospital
and identification of the amount and nature of the pollutants. The Court
pointed out that the Apex Court in AP Pollution Control Board’s case
sought the opinion of National Environmental Appellate Authority
because the Appellate Authority established under section 28 of the
Act in Andhra Pradesh was headed only by a judicial member whereas
the Appellate Authority in Karnataka consisted of judicial member as
also the members who were environmental experts. In the opinion of
the High Court, any rejection of a request for establishment of an
industry when the risk is certain could be made only after proper
identification of the amount and nature of pollutants and to the danger
to which the environment is exposed by such pollution, but what is not
certain is whether the risk is ‘negligible’ or ‘non-negligible’.
Accordingly, the Karnataka High Court quashed the impugned orders
of the Board and the Appellate Authority and observed that it would be
open to the Board to make a detailed study of all potential pollutants
and direct the petitioners as provided under section 25 (5) of the Water
(Prevention and Control of Pollution) Act 1974, and the rules made
thereunder to take all precautionary measures to offset any danger that
might be caused by establishment of the college and the hospital.

In AP Pollution Control Board v MV Nayudu40, various issues including

the issues concerning sections 25 and 28 of the Water (Prevention and
Control of Pollution) Act were involved. The respondent company
moved an application under section 25 of the Water (Prevention and
Control of Pollution) Act before AP Pollution Control Board for the
grant of consent to set up an industry for the manufacture of
hydrogenated vegetable oil (vanaspati ghee). The process of
hydrogenation of vegetable oil involved use of nickel as catalyst. The
Board refused the permission on the ground that the unit was a
polluting industry falling under the red category inasmuch as the
production of hydrogenated vegetable oil would lead to solid waste
containing nickel which was hazardous under Hazardous Waste
(Management and Handling) Rules 1989, alongwith the emission of
sulpher dioxide and nitrogen oxides. The categorisation of industries
into red, green and orange had already been made by the Ministry of
Environment and Forests, Government of India and the respondent
industry fell in the red category. Aggrieved by the order of refusal by
the Board, the respondent company appealed under section 28 of the
Water (Prevention and Control of Pollution) Act before the Appellate
Authority. Before the Appellate Authority, various affidavits were
filed. M Shantappa (Prof), a retired Scientist and technologist stated, in
his affidavit, that the respondent had adopted latest eco-friendly
technology using all the safeguards regarding pollution. Siddhu (Dr),
former Director General of Council of Scientific and Industrial
Relations (CSIR) and the Managing Director of the Company also
submitted their affidavits explaining the details of the technology
employed in the erection of the plants. The Appellate Authority
allowed the appeal of the company and directed the AP Pollution
Control Board to give its consent for the establishment of the factory
on such conditions as the Board might deem fit. The respondent
company filed a writ petition in the High Court for directing the AP
Pollution Control Board to give its consent as a consequence of the
order of the Appellate Authority. The High Court referred to the
affidavit filed by Siddhu (Dr) before the Appellate Authority wherein
Siddhu (Dr) deposed that even if the hazardous waste was a byproduct,
the same could be controlled if the safeguards mentioned in the
Hazardous Wastes (Management and Handling) Rules 1989, were
40
. AIR 1999 SC 812.
followed. The rules made under the Manufacture, Storage and Import
of Hazardous Chemicals (MSIHC) Rules 1989, also permit industrial
activity provided the safeguards mentioned therein are taken. The
Chemicals Accidents (Emergency Planning, Preparedness and
Response) Rules 1991, supplement the MSIHC Rules 1989 on accident
preparedness and envisage a 4-tier crisis management system in the
country. Therefore, merely because an industry produced hazardous
substances, the consent could not be refused. Accordingly, the High
Court allowed the writ petition filed by the respondent company and
directed the grant of consent by the AP Pollution Control Board.

PROBLEM OF COMPLEX TECHNOLOGY

The present case involves the question of determining the correctness

of the opinions of the Board and the Appellate Authority on
technological aspects. The answer to the problem involves combination
of scientific, technological and judicial inputs. In such cases,
considerable difficulty is experienced by the Supreme Court and the
High Courts in adjudicating upon the correctness of the technological and
scientific opinions presented to the courts. The courts also face
difficulties concerning the adequacy of the technology proposed to be
adopted by the industry or need for alternative technology or
modifications suggested by the Pollution Control Board or the other
bodies.

Science and technology poses serious problems in judicial decision

making. The courts are unable to manage and adjudicate science and
technology issues. Judges cannot make appropriate decisions because
they lack technical training and do not comprehend the complexity of
the evidence they are supposed to analyse. The question arises: Is our
judiciary environmentally myopic?

Lord Woolf pointed out the need for a multi-faceted, multi-skilled

body which would combine the services provided by existing courts,
Tribunals and inspectors in the environmental field41. Woolf termed
such body as a ‘one shop one stop’ which should lead to faster,
cheaper and more effective resolution of disputes in the environmental
area. It would avoid increasing the load on already over burdened
courts by trying to compel them to resolve issues with which they are
not designed to deal with.

In MC Mehta v Union of India and Shriram Foods and Fertilizers42

case, the Supreme Court urged the Government of India to set up an
Ecological Science Research Group consisting of independent,
professionally competent experts in different branches of science and
41
. Lord Woolf, Are the Judiciary Environmentally Myopic?, 4
Journal of Environmental Law 1 (1992).
42
. AIR 1987 SC 965.
technology, who would act as information bank for the court and the
government departments and generate new information according to
particular requirements of the court or the concerned government
department.

JUDICIAL SYSTEM REFORMS

To blend judicial, scientific and technological inputs, reforms are needed

in the judicial system. The Supreme Court examined the deficiencies in
the judicial and technical inputs in the appellate system under some of
the environmental laws. Different statutes in India relating to
environment provide for appeals to the appellate authorities. But most
of them still fall short of a combination of judicial and scientific needs.
For example, the qualifications of the persons to be appointed as
appellate authorities under section 28 of the Water (Prevention and
Control of Pollution) Act 1974, section 31 of the Air (Prevention and
Control of Pollution) Act 1981, under rule 12 of the Hazardous Wastes
(Management and Handling) Rules 1989 are not clearly spelt out.
While the Appellate Authority under section 28 in Andhra Pradesh as
per the notification of the AP Government is headed by a retired High
Court Judge and there is nobody on the panel to help him in technical
matters, the same authority as per notification in Delhi is the financial
commissioner (notification dated 18 February 1992) resulting in there
being in NCT, neither a regular judicial member nor a technical one.
Again under National Environmental Tribunal Act 1995, which has the
power to award compensation for death or injury to any person (other
than workman), the said tribunal under section consists of a Chairman
who could be judge or a retired judge of the Supreme Court or the
High Court and a technical member. But section 10(l)(b) read with
section 10(2)(b) or (c) permits a Secretary to the Government or
Additional Secretary who has been a Vice-Chairman for two years to
be appointed as Chairman. The Supreme Court termed the above
instances as of grave inadequacies. The Supreme Court projected the
urgent need to make appropriate amendments so as to ensure that at all
times, the appellate authorities or tribunals consist of judicial and also
technical personnel well versed in environmental law. The Apex Court
observed that such defects in the constitution of these bodies could
undermine the very purpose of the legislations. Thus, according to the
Supreme Court, there is an immediate need that in all States and Union
Territories, the Appellate Authorities under section 28 of the Water
(Prevention and Control of Pollution) Act 1974, section 31 of the Air
(Prevention and Control of Pollution) Act 1981 or other rules, is
headed by 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
adjudication of disputes relating to environment and pollution. The
Apex Court suggested that an amendment to existing notifications
could be made by the Government of India. The Court also highlighted
the need for amending the notifications issued under rule 12 of the
Hazardous Wastes (Management and Handling) Rules 1989, and
requested the Central and State Governments to take appropriate action
urgently.

ENVIRONMENTAL COURTS

The Supreme Court affirmed with approval the earlier judgments

wherein the establishment of the environmental courts was
recommended. In MC Mehta v Union of India and Shriram Foods and
Fertilizers case43, the Supreme Court observed:

We would also suggest to the Government of India that since cases

involving issues of environmental pollution, ecological destructions
and conflicts over natural resources are increasingly coming up for
adjudication and these cases involve assessment and evolution of
scientific and technical data, it might be desirable to set up
Environmental Courts on the regional basis with one professional
Judge and two experts drawn from the Ecological Sciences Research
Group keeping in view the nature of the case and the expertise
required for its adjudication. There would of course be right to
appeal to this court from the decision of the environmental court.

In the present case, the Supreme Court urged the government to

consider the matter of establishment of environmental courts on urgent
basis. The experience shows that the prosecutions launched in ordinary
criminal courts under the provisions of the Water (Prevention and
Control of Pollution) Act, the Air (Prevention and Control of Pollution)
Act and the Environment Protection Act never reach their conclusion
because there is no proper appreciation of the significance of the
environment matters on the part of those in charge of conducting those
cases. Moreover, any orders passed by the authorities under the Water
(Prevention and Control of Pollution) Act, the Air (Prevention and
Control of Pollution) Act and the Environment Protection Act are
immediately questioned by the industries in courts. Those proceedings
take years and years to reach conclusion. Very often, interim orders are
granted which effectively disable the authorities from ensuring the
implementation of their orders. In view of the above problems, the
Supreme Court highlighted the need for creating environmental courts
which alone should be empowered to deal with all matters, civil and
criminal, relating to environment. These courts should be manned by
legally trained persons/judicial officers and should be allowed to adopt
summary procedures. However, the Supreme Court cautioned that the
issue required to be studied and examined indepth from all angles
before taking any action.

PRECAUTIONARY PRINCIPLE

43
. Ibid. at 982.
In this case, the Supreme Court traced the evolution of ‘precautionary
principle’, explained the principle in depth and held the principle as a
part of international customary law. The Supreme Court affirmed
Vellore’s holding wherein ‘polluter pays principle’ as well as
‘precautionary principle’ have been held by the court as international
customary norms and also principles of our domestic law.

The Supreme Court appreciated the constitution of the National

Environmental Appellate Authority envisaged under the National
Environmental Appellate Authority Act 1997, and referred to the
Authority for its opinion the issue whether the respondent industry was
hazardous and also its pollution potentiality taking into account, the
nature of the product, the effluents and its location. The opinion of the
Authority would help the Apex Court to decide the matter of
environmental clearance to the respondent industry.

The judgment is a pointer for Pollution Control Board to grant

consent for setting up an industrial unit on the basis of precautionary
principle. The precautionary principle underlies the provisions of
environmental legislations which relate to the grant of consent by the
Pollution Control Board and to the setting up of industrial units.

In Vellore Citizens Welfare Forum v Union of India44 (Tanneries

case), public interest litigation was initiated alleging that a large
number of tanneries situated at different places in the State of Tamil
Nadu were discharging untreated effluents into agricultural fields,
roadsides, water-ways and open lands which resulted in water
pollution. The untreated effluents were finally discharged in the river
which was the main source of water supply to the residents of the area.
This resulted in non-availability of good drinking water to the
residents of the area. The effluents also affected cultivation. Either
crops did not come up at all or the yield was alarmingly reduced. Most
of the tanneries were owned by rich and influential persons and
therefore, neither the municipality exercised powers nor the Tamil
Nadu Pollution Control Board made judicious use of powers under the
Water (Prevention and Control of Pollution) Act. The State of Tamil
Nadu deposed that the tanneries and other polluting industries in Tamil
Nadu were being persuaded for the last 10 years to control pollution
generated by them. They were given the option either to construct
Common Effluent Treatment Plants (CETPs) or to set up individual
pollution control devices. The Central Government agreed to give
substantial subsidy for the construction of Common Effluent
Treatment Plants (CETPs). However, most of the tanneries operating
in the State of Tamil Nadu did not take any step to control the
pollution caused by the discharge of effluents.

The Supreme Court noticed that the leather industry of India became
44
. AIR 1996 SC 2715.
a major foreign exchange earner and Tamil Nadu was the leading
exporter of finished leather accounting for about 80 per cent of the
country’s export. Though the leather industry was of vital importance
to the country as it generated foreign exchange and provided
employment avenues, it had no right to destroy the ecology, degrade
the environment and pose as a health hazard. It could not be permitted
to expand or even to continue with the present production unless it
tackled by itself the problem of pollution created by the said industry.

SUSTAINABLE DEVELOPMENT

The Supreme Court pointed out that the traditional concept of

development and ecology being opposed to each other was no longer
acceptable. The Court mentioned that during the two decades from
Stockholm to Rio, sustainable development came to be accepted as a
viable concept to eradicate poverty and improve the quality of human
life while living within the carrying capacity of the supporting
ecosystems. The Court held that sustainable development as a
balancing concept between ecology and development was accepted as a
part of customary international law. Some of the salient principles of
sustainable development are intergenerational equity, use and
conservation of natural resources, environmental protection,
precautionary principle, polluter pays principle, obligation to assist and
co-operate, eradication of poverty, and financial assistance to the
developing countries. The Supreme Court further held that the
‘precautionary principle’ and the ‘polluter pays principle’ are essential
features of the sustainable development. The precautionary principle in
the context of municipal law means:

(i) environmental measures by the State Government and statutory

authorities must anticipate, prevent and attack the causes of
environmental degradation;

(ii) where there are threats of serious or irreversible damage, lack of

scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation;

(iii) the onus of proof is on the actor or the developer/industrialist to

show that his action is environmentally benign.

The ‘polluter pays principle’ as interpreted by the Supreme Court

means that the absolute liability for harm to the environment extends
not only to compensate the victims of pollution but also the cost of
restoring the environmental degradation. Remediation of the damaged
environment was held to be a part of the process of sustainable
development and as such the polluter would be liable to pay the cost to
the individual sufferers as well as the cost of reversing the damaged
ecology.
 The Supreme Court held that the precautionary principle and the
polluter pays principle have been accepted as a part of law of the land.
The precautionary principle and the polluter pays principle have been
held to be a part of the environmental law of the country. Accordingly,
the Supreme Court directed the Central Government to establish
authority under section 3(3) of the Environment (Protection) Act 1986,
which shall implement precautionary principle and the polluter pays
principle. Thereafter, the Government of India has issued various
notifications for the establishment of the authority. The Supreme Court
directed that authority shall assess the amount of compensation in
accordance with the polluter pays principle and the issue of grant of
consent shall be determined in accordance with the mandate of
precautionary principle.

The Supreme Court directed the tanneries to obtain the consent of

the Pollution Control Board to function and to install CETPs or
individual pollution control devices on an urgent basis. Many tanneries
functioning for a long time without installation of treatment plants were
ordered to be closed down.

In Indian Council for Enviro-Legal Action v Union of India45 (H Acid

or Bichhri case), the writ petition filed by an environmentalist
organisation brings to light the woes of people living in Bichhri village
in Udaipur district of Rajasthan which had chemical industrial plants in
its vicinity. The respondent chemical industries manufacturing H acid
discharged effluents in the form of highly toxic iron based and gypsum
based sludge which was thrown in the open in and around the complex.
The toxic substances percolated deep into the bowels of the earth,
polluting the acquifers and the sub-terranean supply of water. The water
in the wells and the streams turned dark and dirty rendering it unfit for
human consumption. The water became unfit even for cattle to drink
and for irrigating the land. The soil, the mainstay of villagers also
became polluted rendering it unfit for cultivation. It spread disease,
death and disaster in the village Bichhri and the surrounding areas. The
villagers rose in revolt leading to imposition of section 144 CrPC by
the Magistrate of the area. Rajasthan Pollution Control Board passed
orders of closing down, in discharge of powers under section 33A of the
Water (Prevention and Control of Pollution) Act of some of the
chemical industries. The Board also passed orders directing
disconnection of electric supply to some of the chemical plants.
However, the Supreme Court in its earlier order dated 18 March 1994,
directed the Board to adopt a constructive attitude and examine the
issue of grant of permission to restart the industry or to permit any
interim arrangement in that behalf. On 8 April 1994, a consent order
was passed whereunder the industry was directed to deposit a sum of
45
. AIR 1996 SC 1446.
(v) Substituted by section 13, Act 53 of 1988 for sub-section (1) (wef
29 September 1988).
rupees sixty thousand with the Board for the construction of a storage
tank. The Supreme Court directed the industry to comply with such
other requirements as may be pointed out by the Board for prevention
and control of pollution. Thus, the Supreme Court interfered with the
functioning of the Board in the process of grant of consent to the
polluting industry.

National Environmental Engineering Research Institute (NEERI) of

Nagpur submitted a report on ‘Restoration of Environmental Quality of
the affected area surrounding village Bichhri due to past waste disposal
activities.’ NEERI had worked out the cost of repairing the damage as
more than rupees forty crores. The Supreme Court discussed at length
the origin, evolution and scope of ‘polluter pays principle’ and held
that respondent industries alone were responsible for all the damage
and therefore, liable for defraying the cost of remedial measures.

The polluter pays principle demands that the financial costs of

preventing or remedying damage caused by pollution should lie with
the undertakings which cause pollution or produce the goods which
cause pollution. Under the principle, it is not the role of the
government to meet the costs involved in either prevention of such
damage, or in carrying out remedial action, because the effect of this
would be to shift the financial burden of the pollution incident to the
tax payer.

The Supreme Court also discussed the rule of absolute liability for
pollution caused by handling of hazardous substances as evolved in
Shriram Foods and Fertilizers case and applied the principle to the
facts of this case. The Supreme Court also examined the provisions of
the Environment (Protection) Act 1986.

ENVIRONMENTAL AUDIT

The Supreme Court favoured the idea of environmental audit by

specialist bodies created on a permanent basis with the power to
inspect, check and take necessary action not only against erring
industries but also against erring officers. The Supreme Court expressed
the desire that the idea of an environment audit conducted periodically
and certified annually by duly recognised specialists in the field should
also be considered.

The Supreme Court finally passed various directions to the

respondents including the Rajasthan Pollution Control Board,
Rajasthan Government and the Central Government who were directed
to exercise the powers entrusted to them under environmental
legislations.

2. Refusal or Withdrawal of Consent

Section 27v of the Water (Prevention and Control of Pollution) Act,
1974 deals with refusal or grant of consent by the State Board. Sub-
section (1) provides that:

State Board shall not grant its consent under sub-section (4) of section 25 for
the establishment of any industry, operation or process, or treatment and
disposal system or extension or addition thereto, or to the bringing into use
of a new or altered outlet unless the industry, operation or process, or
treatment and disposal system or extension or addition thereto is so
established as to comply with any conditions imposed by the Board to
enable it to exercise its right to take samples of the effluent.

3. Review of Consent Order

Sub-section 2 of section 27w provides for review by the State Board of

its order made under section 25 and section 26. Sub-section (2) of
section 27 provides that:

A State Board may from time to time review any condition imposed
under section 25 or section 26 and may serve on the person to whom the
consent under section 25 or section 26 is granted a notice making any
reasonable variation of or revoking any such condition.

Sub-section 2(b) of section 27 provides that State Board may from

time to time review the refusal of any consent under section 25 or
section 26 or the grant of such consent without any condition and may
make such orders as it deems fit.

4. Appeals

Section 28 provides for an appeal against the order of the State Board
made under sections 25, 26 or 27. The State Government has the power
to constitute the Appellate Authority which shall consist of single person
or three persons who shall be appointed by the State Government46. The
qualification of the persons to be appointed as members of the
Appellate Authority which has the power to hear appeals against the
orders of the State Board made under sections 25, 26 or 27 has not been
clearly spelt out and is left to the wisdom of the State Government. In
AP Pollution Control Board v MV Nayudu47, the Supreme Court pointed
out that Appellate Authority under section 28 in Andhra Pradesh as per
the notification of the AP Government consisted of a retired High
Court Judge and there was nobody to help him on technical matters,
46
. Section 28, (1) and (2) of the Water (Prevention and Control of
Pollution) Act 1974.
47
. AIR 1999 SC 812.

(w) Substituted by section 14, Act 44 of 1978, for sub-section (2)

whereas the Appellate Authority as per notification in Delhi was the
Financial Commissioner (notification dated 18 February 1992)
resulting in there being in NCT, neither a regular judicial member nor a
technical one. The Supreme Court termed these instances as of grave
inadequacies. The Supreme Court projected the urgent need to make
appropriate amendment in section 28 so as to ensure that at all times,
the Appellate Authority consists of judicial and also technical
personnel, well versed in environmental law. Thus, according to the
Supreme Court, there is an immediate need that in all States and Union
Territories, the Appellate Authorities under section 28 of the Act always
consist of a Judge of the High Court, sitting or retired, and a scientist or a
group of scientists of high ranking and experience. However, in
Vijayanagar Educational Trust v KSPC Board, Bangalore 48, Karnataka High
Court expressed satisfaction over the fact that unlike, Andhra Pradesh, the
Appellate Authority in Karnataka consisted of judicial member as also
members who were environmental experts.

Sub-section (1) of section 28 provides that:

Any person aggrieved by an order made by the State Board under

section 25, 26 or 27 may, within thirty days from the date on which
the order is communicated to him, prefer an appeal to the appellate
authority as the State Government may think fit to constitute.

Provided, the appellate authority may entertain the appeal after

the expiry of the said period of 30 days if the appellate authority is
satisfied that the appellant was prevented by sufficient cause from
filing the appeal in time.

Sub-section (4) of section 28 provides that:

On receipt of an appeal referred under sub-section (1), the appellate

authority shall, after giving the appellant and the State Board an
opportunity of being heard, dispose of the appeal as expeditiously as
possible.

Sub-section (5) of section 28 provides that:

If the appellate authority determines that any condition imposed, or

the variation of any condition, as the case may be, was
unreasonable, then:

(a) where the appeal is in respect of the unreasonableness of any

condition imposed, the appellate authority may direct either
that the condition shall be treated as annulled or that there
shall be substituted for it such condition as appears to it to be
reasonable;
48
. AIR 2002 Karnataka 123.
 (b) where the appeal is in respect of the unreasonableness of any
variation of a condition, the appellate authority may direct
either that the condition shall be treated as continuing in
force unvaried or that it shall be varied in such manner as
appears to it to be reasonable.

V. REVISION

The State Government has the power to revise the decision of the State
Board made under section 25, 26 or 27. Sub-section (1) of section 29
provides that:

The State Government may at any time either of its own motion or
on an application made to it in this behalf, call for the records of any
case where an order has been made by the State Board under section
25, 26 or 27 for the purpose of satisfying itself as to the legality or
propriety of any such order and may pass such order in relation
thereto as it may think fit.

Provided that ‘the State Government shall not pass any such order
under this sub-section without affording the State Board and the
person who may be affected by such order a reasonable opportunity
of being heard in the matter.

Sub-section (2) of section 29 provides that:

The State Government shall not revise any order made under section
25, 26 or 27 where an appeal against that order lies to the appellate
authority but has not been preferred or where an appeal has been
preferred such appeal is pending before the appellate authority.

Section 29 does not indicate the constitution of the governmental

instrumentality which has the power to revise the decision of the State
Board. It is not clear whether the body which has revisionary powers
shall consist of a judicial member or scientific member or an officer
from the bureaucracy. Moreover, the revision petition does not lie if no
appeal has been preferred to the appellate authority or if an appeal is
pending before an appellate authority. This means that revision petition
lies only if the appeal has been preferred and has been disposed of by
the appellate authority.

VI. JUDICIAL RESTRAINT ORDERS

Sub-section (1) of Section 3349, inserted by 1988 amendment,

49
.Section 33 states: Power of Board to make application to courts for
restraining apprehended pollution of water in streams or wells – x[(1)
Where it apprehended by a Board that the water in any stream or well
empowers the State Board to move an application to the court of
Metropolitan Magistrate or Judicial Magistrate of first class for
restraining the polluter from polluting activity in case of apprehension
by the State Board of the pollution of water in any stream or well or
sewer or land as a result of such polluting activity of the polluter. The
power to obtain the restraint order of the court is confined only to the
Board and excludes any other person, organisation or authority. Sub-
section (2) of section 33 of the Act further clarifies that the court may
make such order as it deems fit.

Sub-section (3) of section 33 provides that alongwith the restraint

order, the court may issue directions:

is likely to be polluted by reason of the disposal or likely disposal of

any matter in such stream or well or in any sewer or on any land, or
otherwise, the Board may make application to a court, not inferior to
that of a Metropolitan Magistrate or judicial Magistrate of the first
class, for restraining the person who is likely to cause such pollution
from so causing.]

(2) On receipt of an application under sub-section (1) the court may

make such order as it deems fit.

(3) Where under sub-section (2) the court makes an order restraining
and person from polluting the water in any stream or well, it may in that
order–

(i) direct the person who is likely to cause or has caused the pollution
of the water in the stream or well, to desist from taking such action as is
likely to cause pollution or, as the case may be, to remove from such
stream or well, such matter, and

(ii) authorise the Board, if the direction under clause (i) (being direction
for the removal of any matter from such stream or well) is not complied
with by the person to whom such direction is issued, to undertake the
removal and disposal of the matter in such manner as may be specified by
the court.

(4) All expenses incurred by the Board in removing any matter in

pursuance of the authorisation under clause (ii) of sub-section (3) or in the
disposal of any such matter may be defrayed out of any money obtained by
the Board from such disposal and any balance outstanding shall be
recoverable from the person concerned as arrears of land revenue or of
public demand.

(x) Substituted by section 17, Act 53 of 1988 for sub-section (1) (wef 29
September 1988).
 (i) to the polluter to desist from polluting activity or to remove the
polluting matter from polluted stream or well;

(ii) authorising the State Board to undertake the task of removal of

the polluting matter in case of failure of the polluter to do so.

Interesting questions emerge from section 33 of the Water

(Prevention and Control of Pollution) Act 1974. What is the power of
the court to fashion injunctive relief under section 33 of the Act? What
is the linkage between section 21 and section 33 of the Act? Do ex
parte restraint orders issued under section 33 of the Water (Prevention
and Control of Pollution) Act violate the fundamental right to carry on
a trade or business guaranteed by article 19(l)(g) of the Constitution?
Should the court take into account the financial inability of the polluter
to comply with the Board’s consent order while issuing directions
under section 33? What is the effect of section 33 of the Water
(Prevention and Control of Pollution) Act on the availability of
injunctive relief under section 133 of the Criminal Procedure Code?

In Messrs Delhi Bottling Co Pvt Ltd v Central Board for the

Prevention and Control of Water Pollution50, the petitioners, Messrs
Delhi Bottling Co Pvt Ltd, have been carrying on the business of
preparation of soft drinks under the trade names Gold Spot, Limca,
Thums Up, Rim Zim etc. at their factory situated at New Delhi. They
were discharging trade effluents which ultimately entered the stream,
i.e. river Yamuna. The company duly obtained the consent order under
the provisions of section 25 and 26 of the Water (Prevention and
Control of Pollution) Act. A complaint under sub-section (1) section 33
of the Act was filed by the Central Board for the prevention and control
of water pollution against the petitioners. In the complaint, it was
alleged that a sample of the trade effluents of the company was lifted
by the officials of the Board in the presence of the company’s
representative. On analysis, the sample has been found as not
conforming to the parameters of the consent order.

The Metropolitan Magistrate passed the orders restraining the

petitioners from causing pollution of the stream by discharging the
trade effluents till the required treatment plant is set up and conforming
the trade effluents according to the standards prescribed by the Board in
its consent order. Feeling aggrieved by the orders of the Metropolitan
Magistrate, the petitioners filed the petition under section 482 of the
Criminal Procedure Code in the High Court of Delhi.

The petitioners revealed that the sample collected under section 21

of the Water (Prevention and Control of Pollution) Act was not divided
into two parts inspite of the request made by the company’s
representative. The company’s representative was present when the
50
. AIR 1986 Delhi 152.
samples were lifted. The representative of the company made a
demand to the officials of the Board to divide the sample into two parts
and to get the same analysed in accordance with section 21 of the Water
(Prevention and Control of Pollution) Act. However, the Board did not
accept the request and got the sample analysed from the laboratory of
the Board.

The respondents submitted that for passing an order under section

33 of the Act, there was no need to lift the samples of the effluents
from the factory premises and get the same analysed as per provisions
of the section 21 of the Water (Prevention and Control of Pollution)
Act. Therefore, the respondents argued, it was not necessary for the
officials of the Board to divide the sample lifted into two parts and to
get the same anlysed from the laboratory established by the Delhi
Administration as per the provisions of sub-section (4) section 21 of
the Act. According to the respondents, under section 33 of the Water
(Prevention and Control of Pollution) Act, the Board has the power to
lift a sample on a ground other than the one that water in the stream is
polluted by reason of disposal of any matter therein or of any likely
disposal of any matter therein. Moreover, section 21 being confined to
the lifting of samples only in cases of likelihood of the pollution of
stream due to disposal of any matter therein, provisions of section 21
would not come into operation for lifting of a sample for the purposes
of getting an order under section 33 of the Act.

The High Court of Delhi rejected the argument of the respondents by

holding that section 21 is a provision of general application governing
the matter of lifting of samples in all cases including the cases for the
purpose of obtaining an order under section 33 of the Act. Sub-section
(1) section 21 of the Act incorporates the powers of the State Board
with regard to the lifting of samples of water from any stream or well
or samples of any sewage or trade effluent which is passing from any
plant or vessel or from or over any place into any stream or well. Sub-
section (2) section 21 of the Act states that the result of any analysis of
a sample of any sewage or trade effluent taken under sub-section (1)
shall not be admissible in evidence in any legal proceeding unless the
provisions of sub-section (3), (4) and (5) are complied with. The Delhi
High Court held that the proceedings under section 33 of the Water
(Prevention and Control of Pollution) Act are obviously legal
proceedings under the Act and, therefore, the sample must be lifted in
accordance with section 21 of the Act when only its analysis could be
admissible in evidence in proceedings under section 33 of the Water
(Prevention and Control of Pollution) Act.

An interesting submission of the petitioners was that there was no

absolute obligation on the part of the petitioners to erect a separate
treatment plant so long as they were not discharging effluents contrary
to the parameters as provided in the consent order of the Board.
According to Delhi High Court, the true interpretation of the impugned
order of the Magistrate is that a restraint order has been passed against
the petitioners restraining them discharging their effluents into the
stream which do not conform to the quality as per the standards
prescribed by the Board in its consent order and thereby causing
pollution of the stream. The High Court clarified that the impugned
order could not be construed as a direction given to petitioners to erect
a treatment plant. Such a direction, according to Delhi High Court, is
not envisaged by the provisions of section 33 of the Water (Prevention
and Control of Pollution) Act which only provides for passing of a
restraint order by the court against the polluter.

Finally, the High Court of Delhi accepted the petition and set aside
the impugned order of the Magistrate.

The abovementioned judgment of the Delhi High Court nullifies all

the efforts of the Board to stop the apprehended polluting activity of
the company. To achieve its objective, the Board must commence a
new action against the company to obtain judicial relief resulting in a
delay. This defeats the purpose of the Water (Prevention and Control of
Pollution) Act and makes the punitive enforcement mechanisms of the
Act meaningless. Perhaps, the correct line of action for the High Court
would have been to retain the jurisdiction over the case, issue
directions to the Board to follow the prescribed procedure for lifting the
sample and then decide the case within specific time frame.

1. Effect of Section 33 on Section 133, CrPC

There are interesting judgments on the issue of effect of section 33 of

the Water (Prevention and Control of Pollution) Act on section 133 of
the Criminal Procedure Code (CrPC). The case of Municipal Council,
Ratlam v Vardhichand, decided by the Supreme Court, is an outcome
of the action of the residents of a locality within the limits of the
Ratlam Municipality under section 133 of the Criminal Procedure
Code against the Municipality to do its duty towards the members of
the public by removing the nuisance caused due to the existence of
open drains, pits and public excretion by humans due to want of
lavatories. In the Ratlam Municipality area, the pollution was caused
due to various reasons. In the locality, many educated and prosperous
people were living. A large area of the locality had slums where no
facility of lavatories was supplied by the Municipality. Many people
lived in these slums who relieved their lateral dirt on the bank of drains
or on the adjacent lands. This way an open latrine was created by these
people. This created heavy dirt and mosquitoes. The drainage system
in the locality was also not proper. This resulted in the accumulation of
water on the main road especially during the rainy season which in turn
passed through living houses. Moreover, a dirty nala flowed in the
locality. In this stream (nala), many a time dirty and filthy water of
alcohol plants having chemical and obnoxious smell was also released
for which people of the locality had to face most obnoxious smell. This
nala also caused mosquitoes breeding.

Under section 133 of the Criminal Procedure Code, the Magistrate

gave directions to the Municipality to draft a plan within six months
for removing the nuisance. In appeal, the Sessions Court reversed the
order of the Magistrate. The High Court approved the orders of the
Magistrate. In further appeal, the matter came up before the Supreme
Court. Krishna Iyer Justice delivered the judgment using his usual
flowery language and affirmed the order of the Magistrate.

The Supreme Court found section 133 of the CrPC as categoric

although it reads discretionary. The word ‘may’ in section 133 CrPC. is
read as ‘shall’ by the Court. Judicial discretion when the facts for its
exercise are present has a mandatory import. Therefore, when the
Magistrate has before him information and evidence which disclose
existence of public nuisance and on materials placed, he considers that
such unlawful obstruction or nuisance should be removed from any
public place which may be unlawfully used by the public, he shall act.
The Supreme Court held that the Magistrate’s responsibility under
section 133 of the CrPC is to order removal of such nuisance within a
time fixed in the order. This is a public duty implicit in the public
power to be exercised on behalf of the public and pursuant to a public
proceeding. Failure to comply with the direction will be visited with a
punishment contemplated by section 188 of the Indian Penal Code
(IPC). Therefore, the Municipal Commissioner or other executive
authority bound by the order under section 133 of the CrPC shall obey
the direction because disobedience, if it causes obstruction or
annoyance or injury to any persons lawfully pursuing their
employment, shall be punished with simple imprisonment. The offence
is aggravated if the disobedience tends to cause danger to human life or
safety. At that event, the punishment would be imprisonment of either
description for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both. It is here that
Krishna Iyer Justice remarks that the imperative tone of section 133 of
CrPC read with the punitive temper of section 188 of IPC make the
prohibitory act a mandatory duty.

The Supreme Court rejected the plea of the Municipality that it had
no financial resources to perform its statutory duties. The Supreme
Court stated that the Municipality could not take the plea that
notwithstanding the public nuisance, financial inability exonerated it
from statutory liability. A responsible Municipality constituted for the
precise purpose of preserving public health cannot run away from its
public duty by pleading financial inability. The Supreme Court
vehemently hammered out the proposition that budgetary constraints
did not absolve a Municipality from performing its statutory duty. The
Supreme Court held that where there existed a public nuisance in a
locality, the court could require the Municipality to abate the nuisance
by taking affirmative action on a time bound basis.

The Supreme Court also viewed the problem of people living within
the limits of Ratlam Municipality as the problem of enforcement of
their human rights. In the opinion of the Supreme Court, decency and
dignity are non-negotiable facets of human rights and are a first charge
on local self governing bodies. Therefore, the Supreme Court pointed
out that providing drainage system, not pompous and attractive but in
working condition sufficient to meet the needs of the people, cannot be
evaded if the Municipality is to justify its existence.

The Supreme Court, accordingly, affirmed the orders of the

Magistrate and inter alia, directed the Ratlam Municipality to take
immediate action, within its statutory powers, to stop the effluents from
the alcohol plant flowing into the street. Moreover, the Municipality
shall, within six months, construct a sufficient number of public
latrines, provide water supply, scavenging service and proper drainage
system so as to ensure sanitation. On the issue of mobilisation of funds
to finance the sanitation scheme, the Supreme Court expressed the
hope that the State Government would assist the Municipality, and
required the Municipality to cut down its budget on low priority items
and elitist projects.

It is worth noticing that the Supreme Court did not even refer to the
issue of the effect of the Water (Prevention and Control of Pollution)
Act on section 133 of the Criminal Procedure Code (CrPC). The
assumption of jurisdiction over the case under section 133 of CrPC
implies that the Water (Prevention and Control of Pollution) Act is no
bar for initiation of proceedings under section 133 of CrPC in cases
covered under the Water (Prevention and Control of Pollution) Act.

On this issue, it appears difficult to reconcile the Ratlam holding with

the judgment of Kerala High Court in Tata Tea Ltd v State of Kerala51
where the petitioners were running an instant tea factory. The
respondents filed an application before the Sub-Divisional Magistrate
complaining of the wastages which were being discharged in the river.
The wastages had acidic content harmful to the human health and,
therefore, appropriate action was demanded for. The SDM passed a
preliminary order under section 133(1)(b) of CrPC requiring the
petitioner company to desist from discharging the effluents from the
factory into the river within 7 days of the date of the order. The
petitioners filed this petition under section 482 of CrPC to quash the
proceedings before the SDM. Section 482 of CrPC provides as follows:

Saving of Inherent Powers of the High Court – Nothing in this code

51
. 1984 Kerala Law Times 645.
 shall be deemed to limit or affect the inherent powers of the High
Court to make such orders as may be necessary or to give effect to the
any order under this code, or to prevent abuse of the process of any
court or otherwise to secure the ends of justice.

The counsel for the petitioners submitted that the Water (Prevention
and Control of Pollution) Act 1974, is a complete code in itself in the
matter of prevention and control of water pollution. It provides for
measures to control water pollution and devises machinery for the
implementation of the objects of the Act and provides for the
punishment of those who indulge in water pollution. Therefore, it is
contended that the provisions of section 133, CrPC insofar as they
relate to water pollution must be deemed to have been impliedly
repealed.

The Kerala High Court held:

The preamble of the Water Act makes it clear that it has been enacted to
provide for the prevention and control of water pollution and maintain
and restore the wholesomeness of water and to establish Boards to
ensure these purposes. The purpose behind section 133 (l)(b) of CrPC
insofar as it relates to water is also the same. Of course, this provision
covers a wide area and range but it takes in pollution of water also which
is the area and range specially covered by the Water Act. While
section 133 CrPC contemplates inquiry by the Executive Magistrate
into complaints of pollution and measures being taken by the
Magistrate to obviate such pollution or nuisance, the Water Act
confers such powers in the first instance on the State Pollution
Control Board and also on the Judicial Magistrate. The scope of the
power so conferred is much wider than that conferred by the Water
Act. The only difference pointed out by the respondent is that while
under section 133 CrPC it is open to a citizen to directly approach an
Executive Magistrate, he is unable to approach directly a judicial
magistrate under the Water Act. But that would make no difference
since under the provisions of the Water Act, it is open to a citizen
concerned to approach the State Board with his grievance and it is
open to the State Board to take such measures as are contemplated in
the Act including filing petition before a judicial magistrate. All the
remedies which could be provided by the Executive Magistrate
under section 133 of CrPC could certainly be provided by the
authorities under the Water Act. The Water Act is a special statute
while the provisions of section 133 of CrPC are of a general nature. In
regard to pollution of water by effluents, the Water Act is a complete
code in itself and if these two provisions are to co-exist, that would
certainly be causing inconvenience, if not conflict of jurisdiction.
There is no reason to assume that while the Executive Magistrate
could move expeditiously, the State Board could not do so. On the
other hand, the State Board which has considerable expertise and
 requisite machinery in aid of its functions can certainly be expected to
move purposefully and fruitfully in the case of water pollution.

In view of the above observations, the Court held that the provisions
of the Water (Prevention and Control of Pollution) Act, by implication,
repeal the provisions of section 133 of CrPC insofar as they relate to
prevention and control of water pollution. Therefore, the Executive
Magistrate was held to have no jurisdiction to deal with the case under
section 133 of the Criminal Procedure Code. Accordingly, the
proceedings before the SDM were quashed.

In Abdul Hamid v The Gwalior Rayon Silk Mfg Co Ltd52, the

petitioner filed a complaint before SDM under section 133 of CrPC
alleging that the Gwaliior Rayon Silk Manufacturing and Weaving Co
and others were responsible for polluting the areas also the water of the
river which led to the death of the children, animals and water
creatures. It was also alleged that the pollution caused various diseases
among the people and crops were also damaged. The SDM dismissed
the petition on the ground that he had no jurisdiction to deal with the
matter because in respect of acts constituting offences under the Water
(Prevention and Control of Pollution) Act and the Air (Prevention and
Control of Pollution) Act, previous written sanction of the State Board
constituted thereunder is necessary. Aggrieved by the order, the
petitioner moved the High Court in revision.

The High Court pointed out that the express legislative mandate
regarding previous sanction cannot be permitted to be whittled down by
labeling the act complained of as offence not under the special act but
under the IPC. The prosecution of an act which is an offence under the
special act, by an agency other than the competent Board, on the
ground that it is also an offence under the IPC can be characterised as
colourable because the offences under the special Acts are graver ones
and labeling the act as IPC offence is just to evade the requirements of
previous sanction under the special Acts.

The High Court held:

The Water Act and the Air Act are special Acts brought on the statute
book and constitute complete code for prevention and control of water
and air pollution by any trade or industry. It has expressly been
mandated therein that notwithstanding anything inconsistent therewith
contained in any enactment other than the Acts, their provisions have to
prevail. Inconsistent provisions in any other Act cannot be permitted to
come in the way of the provisions of the special Acts and defeat them.
In view of the express provisions in section 60 of the Water Act and
section 52 of the Air Act, the provisions of Indian Penal Code, General
Clauses Act and the Criminal Procedure Code stand repealed to the
52
. 1989 Criminal Law Journal 2013.
 extent of inconsistency.

The High Court finally dismissed the petition holding that the SDM
was right in holding that he had no jurisdiction to proceed with the
matter which is in relation to acts which constitute offences under the
Water (Prevention and Control of Pollution) Act and the Air
(Prevention and Control of Pollution) Act.

The abovementioned approach on the issue of section 133 CrPC v

Water (Prevention and Control of Pollution) Act is not free from
controversy. It is difficult to reconcile the above holdings of the High
courts with the decision of the Supreme Court in Ratlam Municipality
case wherein the Supreme Court did not even refer to the issue of the
effect of Water (Prevention and Control of Pollution) Act on section
133 of CrPC. The affirmation and approval by the Supreme Court of
the assumption of jurisdiction by the Executive Magistrate over the
case under section 133 CrPC implies that in the opinion of the Supreme
Court the Water (Prevention and Control of Pollution) Act is no bar for
the initiation of proceedings under section 133 CrPC in cases covered
under the Water (Prevention and Control of Pollution) Act. In
Nagarjuna Mills Ltd v Sub-Divisional Magistrate53, Andhra Pradesh
High Court adopted a different approach to deal with the problem of
the effect of Water (Prevention and Control of Pollution) Act on section
133 of CrPC and adopted a less stringent rule by holding that the
Executive Magistrate has the power under section 133 of CrPC to grant
injunctive relief in cases covered under the Water (Prevention and
Control of Pollution) Act provided such relief does not interfere with
the order of the State Pollution Control Board issued under the Water
(Prevention and Control of Pollution) Act. The Court has held that
section 133 injunctive relief would be available as long as it does not
interfere with any order of the Pollution Control Board under Water
(Prevention and Control of Pollution) Act. In the two opposite poles of
the spectrum, the judgment of the Andhra Pradesh High Court lies in
the middle.

The approaches adopted by the High Courts are not based on sound
considerations. Under section 33 of the Water (Prevention and Control
of Pollution) Act, the Pollution Control Boards have the jurisdiction to
move the Judicial or Metropolitan Magistrate for an injunctive relief.
An individual or a voluntary organization does not have locus standi
under section 3 of the Water Act to move the court. In 1988, the Water
(Prevention and Control of Pollution) Act was amended and citizen suit
provision was inserted. However, under citizen suit provision, a citizen
has to serve 60 days notice before moving the court. This considerably
mitigates the punitive effect of the enforcement mechanisms of the
Water (Prevention and Control of Pollution) Act. Any attempt to
restrict the scope of section 133 of CrPC on the basis of section 33 of
53
. 1987 Criminal Law Journal 2071.
the Water (Prevention and Control of Pollution) Act will deprive the
citizens from bringing an action against the polluter. Such an attempt
would nullify the spirit of the Water (Prevention and Control of
Pollution) Act which is passed to prevent and abate the water pollution.
Moreover, there is no inconsistency between section 33 of the Water
(Prevention and Control of Pollution) Act and section 133 of the CrPC.
Both are mutually supportive and can operate in their respective
spheres. If State Pollution Control Board fails to discharge its duty to
prevent water pollution, an individual has the power to file a complaint
before Executive Magistrate under section 133 of the CrPC or before
Metropolitan Magistrate under citizen suit provision after serving 60
days notice to the Board.

VII. CLOSURE OR STOPPAGE OF WATER OR ELECTRICITY

SUPPLY

Section 33A54 has been introduced in the Water (Prevention and Control
of Pollution) Act by way of amendment. It empowers the State Board
to issue directions to any person, officer or authority, including orders to
close, prohibit or regulate any industry, operation or process and to stop
or regulate the supply of water, electricity or any other service. Before
the 1988 amendment, the State Board could issue the restraint or
prohibitory orders under section 32 only to the polluters and not the
government officials or other parties. Moreover, section 32 empowered
the State Board to issue such orders only in case of pollution resulting
from an accident or other unforeseen act or event. However, the power
of the State Board to give directions under section 33A of the Act is
subject to any directions that the Central Government may give in this
behalf.

Section 33A introduces new dimension to the Indian environmental law

by empowering a non judicial body to issue such stringent and punitive
directions as closure, prohibition or regulation of any polluting industry,

54
.Section 33A states: y[Power to give directions – [notwithstanding
anything contained in any other law, but subject to the provisions of
this Act, and to any directions that the Central Government may give
in this behalf, a Board may, in the exercise of its powers and
performance of its functions under this Act, issue any directions in
writing to any person, officer or authority, and such person, officer or
authority shall be bound to comply with such directions. – Explanation
– For the avoidance of doubts, it is hereby declared that the power to
issue directions under this section includes the power to direct - (a) the
closure, prohibition, or regulation of any industry, operation or
process; or (b) the stoppage or regulation of supply of electricity,
water or any other service.]

(y) Inserted by section 18, Act 53 of 1988 (wef 29 September 1988).

operation or process or the stoppage of essential services like electricity or
water supply to the polluting unit. What makes the orders of the Board
more rigorous is the fact that these orders can be passed by the Board
without judicial intervention in the form of permission by the court.

The penalties for the contravention of the orders of the State Board under
sections 3255 and 33A are very stringent. Section 41 56 of the Act provides
that the first conviction for the violation of the orders of the Board under
clause (c) of sub-section (1) of section 32 or directions issued under sub-
section (2) of Section 33 or directions issued under Section 33A shall be
punishable with minimum imprisonment for a term which shall not be

55
.Section 32 states: Emergency measures in case of pollution of stream
or well.—(1) When it appears to the State Board that any poisonous,
noxious or polluting matter is present and z[any stream or well or on
land by reason of the discharge of such matter in such stream or well
or on such land] or has entered into that stream or well due to any
accident or other unforeseen act or event, and if the Board is of
opinion that it is necessary or expedient to take immediate action, it
may for reasons to be recorded in writing, carry out such operations,
as it may consider necessary for all or any of the following
purposes, that is to say,—

(a) removing that matter from the a[stream or well or on land] and
disposing it of in such manner as the Board considers appropriate;

(b) remedying or mitigating any pollution caused by its presence in

the stream or well;

(c) issuing orders immediately restraining or prohibiting the person

concerned from discharging any poisonous, noxious or polluting matter
b
[into the stream or well or on land] or from making insanitary use of the
stream or well.

(2) The power conferred by sub-section (1) does not include the power to
construct any works other than works of a temporary character which are
removed on or before the completion of the operations.
56
.Section 41 states: c[Failure to comply with directions under sub-
section (2) or sub-section (3) of section 20, or orders issued under
clause (c) of sub-section (1) of section 32 or directions issued under
sub-section (2) of section 33 or section 33A.—(1) Whoever fails to
comply with the direction given under sub-section (2) or sub-section
(3) of section 20 within such time as may be specified in the direction
shall, on conviction, be punishable with imprisonment for a term
which may extend to three months or with fine which may extend to
ten thousand rupees or with both and in case the failure continues,
with an additional fine which may extend to five thousand rupees for
less than one year and six months but which may extend to six years
and with fine. In case, the failure continues, an additional fine shall be
imposed extending to five thousand rupees for every day during which
such failure continues after the conviction for the first such failure.

In Bhavani River-Sakthi Sugars Ltd57, Tamil Nadu Pollution Control

Board issued directions to the respondents in exercise of the powers
conferred under section 33A of the Water (Prevention and Control of
Pollution) Act as amended in 1988. The directions were aimed at
ensuring proper storage of effluent in lagoons and for proper treatment
and disposal of the effluent. However, the respondents did not comply
with the directions of the Board and the seepage of the effluent from
unlined lagoon joined the drain and ultimately reached river Bhavani
thereby contaminating the river. The Supreme Court pointed out that the

every day during which such failure continues after the conviction for
the first such failure.

(2) Whoever fails to comply with any order issued under clause (c) of
sub-section (1) of section 32 or any direction issued by a court under
sub-section (2) of section 33 or any direction issued under section 33A
shall, in respect of each such failure and on conviction, be punishable
with imprisonment for a term which shall not be less than one year and
six months but which may extend to six years and with fine, and in case
the failure continues, with an additional fine which may extend to five
thousand rupees for every day during which such failure continues after
the conviction for the first such failure.

(z) Substituted by section 16, Act 53 of 1988 for ‘any stream or well’
(wef 29 September 1988).

(a) Substituted by section 16, Act 53 of 1988 for ‘stream or well’ (wef
29 September 1988).

(b) Substituted by section 16, Act 53 of 1988 for ‘into the stream or well’ (wef 29
September 1988).

(c) Substituted by section 21, Act 53 of 1988 for section 41 (wef 29 September 1988).

(3) If the failure referred to in sub-section (2) continues beyond a period

of one year after the date of conviction, the offender shall, on conviction,
be punishable with imprisonment for a term which shall not be less than
two years but which may extend to seven years and with fine.]
57
. AIR 1998 SC 2059.

(d) Substituted by section 26, Act 53 of 1988, for sub-section (1) (wef 29
September 1988).
respondents have not taken remedial measures to prevent pollution and
had failed to arrest the unabated pollution of the river water which
became a health hazard and environmental enemy. Accordingly, the
Supreme Court directed the closure of the respondent industry till the
unlined lagoons are removed and the contamination is stopped. The
Court requested the NEERI to conduct an inspection of the industry and
to submit a report to the Court disclosing whether the pollution control
devices have been fixed by the industry and proper steps taken to
control pollution in accordance with the provisions of the Act or not.
NEERI was also requested to inspect the surrounding area with a view
to assess damage caused due to discharge of effluent by the industry
and to indicate the cost of restitution.

VIII. CITIZENS SUIT PROVISION

Citizens suit provision has been introduced by the 1988 amendment in

the Water (Prevention and Control of Pollution) Act. According to sub-
section (1) section 49 of the Water (Prevention and Control of
Pollution) Act:
d
[No court shall take cognizance of any offence under this Act except
on a complaint made by:

(a) a Board or any officer authorized in this behalf by it; or

(b) any person who has given notice of not less than sixty days in
the manner prescribed of the alleged offence and of his
intention to make a complaint to the Board or the officer
authorised as aforesaid.

and no court inferior to that of a Metropolitan Magistrate or a Judicial

Magistrate of the first class shall try any offence punishable under this Act.]

The requirement of 60 days notice to the State Board mitigates the

stringent effect of the punitive provisions of the Water (Prevention and
Control of Pollution) Act. Sub-section (2) Section 49 of the Act
requires the Board to make available the relevant reports in its
possession to the complainant on his demand. This is followed by a
proviso stating that the Board may refuse to make any such report
available to such person if the same is, in its opinion, against the public
interest.

This might create complications. Under sections 20 and 21 of the

Act, the State Board may obtain the information or take samples of
effluents. The Board is required to release the relevant information to
the complainant. However, the Board is not under an obligation to
obtain information or to take samples of effluents. The complainant
has no access to relevant information if the State Board prefers not to
obtain such information. Moreover, the State Board has discretion to
withhold reports whose release would, in its opinion, be against
national interest. The issue of determination of the scope of ‘national
interest’ is left to the decision of the State Board. The Water
(Prevention and Control of Pollution) Act does not contain guidelines
for the State Board in this respect. The circumstances under which it
would be in national interest to withhold the information have not been
specified in the Water (Prevention and Control of Pollution) Act.

In Messrs Lipton India Ltd v State of UP58, the issue is whether

complaint filed by the Assistant Environment Engineer under section
49 of the Water (Prevention and Control of Pollution) Act (before its
amendment in 1988) was sufficient compliance with section 49 of the
Act. Allahabad High Court held:

Where the Board resolved to file the complaint, naturally the act of
filing the complaint was to be performed by some officer of the Board
well conversant with the facts of the case as the Board is a legal person
and not named person and thus, for performing aforesaid act of filing
complaint, Board authorised one of its officers to be nominated by the
Assistant Secretary who in turn nominated Assistant Environment
Engineer to file the complaint. It was sufficient compliance with section
49 and the complaint thus filed by the Board through Assistant
Environment Engineer would be valid. In such a case, mere nomination
by the Assistant Secretary, does not amount to further delegation of a
delegated power or further sub-delegation of sub-delegated power.
When a statute conferring powers imposes certain duties and functions
incidental to the exercise of power in such a way that they are
integrally connected with them, a permissible delegation of the power
is effective to delegate duties and functions along with the power.

IX. PUNITIVE MEASURES

1. Punishment For Failure to Comply With Directions Under

Section 20. 32, 33 and 33A

Section 2059 of the Act empowers the State Board to give directions to
58
. AIR 1996 Allahabad 173.
59
.Section 20 states: Power to obtain information.—(1) For the
purpose of enabling a State Board to perform the functions
conferred on it by or under this Act, the State Board or any officer
empowered by it in that behalf, may make surveys of any area and
gauge and keep records of the flow or volume and other
characteristics of any stream or well in such area, and may take steps
for the measurement and recording of the rainfall in such area or any
part thereof and for the installation and maintenance for those
purposes of gauges or other apparatus and works connected
therewith, and carry out stream surveys and may take such other
any person to obtain information concerning abstraction of water from
any stream or well or discharge of trade or sewage effluent into stream or
well. The failure to comply with the directions of the Board given under
section 20 are punishable under section 41 of the Act. Subsection (1) of
section 41 provides that the conviction of a person for failure to comply
with the directions of the Board issued under section 20 shall be
punishable with imprisonment for a term which may extend to three
months or with fine which may extend to ten thousand rupees or with
both. In case failure continues, an additional fine which may extend to
five thousand rupees for every day during which such failure continues
after conviction for the first such failure shall be imposed.

Section 32 empowers the State Board to take emergency measures in

case of pollution of stream or well. If it appears to the State Board that
polluting matter is present in any stream or well or land or has entered
the sewage or well due to accident or unforeseen event, the Board may
take necessary action for removing polluting matter and for remedying
or mitigating any pollution caused by the polluting matter in the stream
or well. The emergency power of the Board under section 32 extends
to issuing orders immediately restraining or prohibiting the person
concerned from discharging any polluting matter into stream or well.
Section 33 of the Act deals with the grant of injunction relief by the
Metropolitan Magistrate to restrain the pollution from the polluting
activity on an application moved by the State Board. Section 33A
confers power on the Board to issue stringent directions amounting to

steps as may be necessary in order to obtain any information required

for the purposes aforesaid.

(2) A State Board may give directions requiring any person who in
its opinion is abstracting water from any such stream or well in the area in
quantities which are substantial in relation to the flow or volume of that
stream or well or is discharging sewage or trade effluent into any such
stream or well, to give such information as to the abstraction or the
discharge at such times and in such form as may be specified in the
directions.

(3) Without prejudice to the provisions of sub-section (2), a State

Board may, with a view to preventing or controlling pollution of water,
give directions requiring any person in charge of any establishment where
any e[industry, operation or process, or treatment and disposal system] is
carried on, to furnish to it information regarding the construction,
installation or operation of such establishment or of any disposal system
or of any extension or addition thereto in such establishment

(e) Substituted by section 10, Act 53 of 1988, for ‘industry or trade’ (wef
29 September 1988).
and such other particulars as may be prescribed.
closure, prohibition or regulation of an industry or the stoppage or
regulation of supply of electricity, water or any other service even in
the absence of the direction of the court. Sub-section (2) of section 41
provides that the conviction of a person to comply with the directions of
the Board issued in the exercise of its emergency powers under section
32 shall be punishable with imprisonment for a term which shall not be
less than one year and six months but which may extend to six years
and with fine. In case failure continues, an additional fine which may
extend to five thousand rupees for every day during which such failure
continues after conviction of the first such failure shall be imposed.
Sub-section (3) of section 41 provides that:

If the failure referred to in sub-section (2) continues beyond a

period of one year after the date of conviction, the offender shall, on
conviction, be punishable with imprisonment for a term which shall
not be less than two years but which may extend to seven years and
with fine.

The environmental offences committed by way of non-compliance

with the orders of the Board or the court under sections 32, 33 and 33A
are much more grave and of higher gravity in comparison to the
environmental offence which lies in the noncompliance of the orders of
the Board issued under section 20 of the Act. Accordingly, section 41 of
the Act provides for much more stringent punishment for the
commission of environmental offences for violations of section 32, 33
and 33A in comparison to violation of section 20.

2. Penalty for Violation of Section 24

Section 2460 prohibits a person from knowingly causing or permitting

60
.Section 24 states: Prohibition on use of stream or well for disposal of
polluting matter, etc.—(1) Subject to the provisions of this section,
—

(a) no person shall knowingly cause or permit any poisonous,

noxious or polluting matter determined in accordance with such
standards as may be laid down by the State Board to enter (whether
directly or indirectly) into any f[stream or well or sewer or on land]; or

(b) no person shall knowingly cause or permit to enter into any

stream any other matter which may tend, either directly or in
combination with similar matters, to impede the proper flow of the water
of the stream in a manner leading or likely to lead to a substantial
aggravation of pollution due to other causes or of its consequences.

(2) A person shall not be guilty of an offence under sub-section (1), by

reason only of having done or caused to be done any of the following
any polluting matter in excess of the standards laid down by the State
Board from entering into any stream or well or sewer or land or
impeding the proper flow of water in the stream. Any act which
contravenes section 24 is a serious environmental offence. Section 43
of the Act provides that:

Whoever contravenes the provisions of section 24 of the Act shall

be punishable with imprisonment for a term which shall not be
less than e[one year and six months] but which may extend to six
years and with fine.

Section 45 of the Act provides for enhanced penalty after first

conviction. It provides that:

If any person who has been convicted of any offence under section

acts, namely:

(f) Substituted by section 11, Act 53 of 1988, for ‘stream or well’ (wef 29
September 1988).

(a) constructing, improving or maintaining in or across or on the

bank or bed of any stream any building, bridge, weir, dam, sluice,
dock, pier, drain or sewer or other permanent works which he has a
right to construct, improve or maintain;

(b) depositing any materials on the bank or in the bed of any

stream for the purpose of reclaiming land or for supporting, repairing
or protecting the bank or bed of such stream provided such materials
are not capable of polluting such stream;

(c) putting into any stream any sand or gravel or other natural
deposit which has flowed from or been deposited by the current of
such stream;

(d) causing or permitting, with the consent of the State Board, the
deposit accumulated in a well, pond or reservoir to enter into any
stream.

(3) The State Government may, after consultation with, or on the

recommendation of, the State Board, exempt, by notification in the
Official Gazette, any person from the operation of sub-section (1)
subject to such conditions, if any, as may be specified in the
notification and any condition so specified may by a like notification
be altered, varied or amended.
24 or section 2561 or section 2662 is again found guilty of the same offence
involving a contarvention of the same provision, he shall, on the second
and on every subsequent conviction be punishable with imprisonment for
a term which shall not be less than ‘[two years] but which may extend to
seven years and with fine.

However, section 45 further provides that:

No cognizance shall be taken of any conviction made more than two

years before the commission of the offence which is being punished.

61
.Section 25 states: Restrictions on new outlets and new discharges.
—g[(l) Subject to the provisions of this section, no person shall,
without the previous consent of the State Board,—

(a) establish or take any steps to establish any industry, operation

or process, or any treatment and disposal system or any extension or
addition thereto, which is likely to discharge sewage or trade effluent
into a stream or well or sewer or on land (such discharge being
heareafter in this section referred to as discharge of sewage); or

(b) bring into use any new or altered outlet for the discharge of
sewage; or

(c) begin to make any new discharge of sewage:

Provided that a person in the process of taking any steps to establish

any industry, operation or process immediately before the
commencement of the Water (Prevention and Control of Pollution)
Amendment Act, 1988, for which no consent was necessary prior to
such commencement, may continue to do so for a period of three
months from such commencement or, if he has made an application for
such consent, within the said period of three months, till the disposal of
such application.

(2) An application for consent of the State Board under sub-

section (1) shall be made in such form, contain such particulars and
shall be accompanied by such fees as may be prescribed.]

(3) The State Board may make such inquiry as it may deem fit in
respect of the application for consent referred to in sub-section (1) and
in making any such inquiry shall follow such procedure as may be
prescribed.
h
[(4) The State Board may –

(a) grant its consent referred to in sub-section (1), subject to such

 This means that the provision of enhanced penalty would apply only
in cases of two consecutive convictions within a period of two years.

3. Penalty for Violation of Sections 25 and 26

Section 25 deals with the grant of consent by the State Board for
establishing an industry and section 26 deals with the grant of consent
by the State Board to an industry existing at the time of coming into
force of the Act. The State Board may grant the consent
unconditionally or on certain conditions or may even refuse to grant
consent. Any act which violates section 25 and 26 of the Act constitutes

conditions as it may impose, being–

(g) Substituted by section 12, Act 53 of 1988, for sub-sections (1) and
(2) (wef 29 September 1988).

(h) Substituted by section 12, Act 53 of 1988, for sub-sections (4), (5)
and (6) (wef 29 September 1988).

(i) in cases referred to in clauses (a) and (b) of sub-section (1) of section
25, conditions as to the point of discharge of sewage or as to the use of
that outlet or any other outlet for discharge of sewage;

(ii) in the case of a new discharge, conditions as to the nature and

composition, temperature, volume or rate of discharge of the effluent
from the land or premises from which the discharge or new discharge is
to be made; and

(iii) that the consent will be valid only for such period as may be
specified in the order,

and any such conditions imposed shall be binding on any person

establishing or taking any steps to establish any industry, operation or
process, or treatment and disposal system of extension or addition
thereto, or using the new or altered outlet, or discharging the effluent
from the land or premises aforesaid; or

(b) refuse such consent for reasons to be recorded in writing.

(5) Where, without the consent of the State Board, any industry,
operation or process, or any treatment and disposal system or any
extension or addition thereto, is established, or any steps for such
establishment have been taken or a new or altered outlet is brought into use
for the discharge of sewage or a new discharge of sewage is made, the
State Board may serve on the person who has established or taken steps to
establish any industry, operation or process, or any treatment and disposal
system or any extension or addition thereto, or using the outlet, or making
serious environmental offence. Section 44 of the Act provides that:

Whoever contravenes the provisions of section 25 or section 26 of the

Act shall be punishable with imprisonment for a term which shall
not be less than j[one year and six months] but which may extend to
six years and with fine.

Section 45 provides for enhanced penalty after previous conviction.

It provides that:

the discharge, as the case may be, a notice imposing any such conditions
as it might have imposed on an application for its consent in respect of
such establishment, such outlet or discharge.

(6) Every State Board shall maintain a register containing particulars

of the conditions imposed under this section and so much of the register
as relates to any outlet, or to any effluent, from any land or premises shall
be open to inspection at all reasonable hours by any person interested in,
or affected by such outlet, land or premises, as the case may be, or by any
person authorised by him in this behalf and the conditions so contained in
such register shall be conclusive proof that the consent was granted
subject to such conditions.]

(7) The consent referred to in sub-section (1) shall, unless given or

refused earlier, be deemed to have been given unconditionally on the
expiry of a period of four months of the making of an application in this
behalf complete in all respects to the State Board.

(8) For the purposes of this section and sections 27 and 30,—

(a) the expression ‘new or altered outlet’ means any outlet which is wholly or
partly constructed on or after the commencement of this Act or which (whether so
constructed or not) is substantially altered after such commencement;

(b) the expression ‘new discharge’ means a discharge which is not, as respects
the nature and composition, temperature, volume, and rate of discharge of the
effluent substantially a continuation of a discharge made within the preceding twelve
months (whether by the same or a different outlet), so however that a discharge which
is in other respects a continuation of previous discharge made as aforesaid shall not be
deemed to be a new discharge made as aforesaid shall not be deemed to be a new
discharge by reason of any reduction of the temperature or volume or rate of
discharge of the effluent as compared with the previous discharge.

62
.Section 26 states: Provision regarding existing discharge of sewage or
trade effluent.—Where immediately before the commencement of this
Act any person was discharging any sewage or

(i) Substituted by section 13, Act 44 of 1978 for ‘stream or well.’

 If any person who has been convicted of any offence under section
24 or 25 or 26 is again found guilty of the same offence involving a
contravention of the same provision, he shall, on the second and on
every subsequent conviction be punishable with imprisonment, for a
term which shall not be less than k[two years] but which may extend
to seven years and with fine. However, section 45 further provides
that no cognizance shall be taken of any conviction made more than
two years before the commission of the offence which is being
punished.

This means that the provision of enhanced penalties would apply

only in cases of two consecutive convictions within a period of two
years.

4. Penalties for Certain Acts

Section 42 of the Act provides penalties for certain acts mentioned

therein. It provides that:

Whoever:

(a) destroys, pulls down, removes, injures or defaces any pillar,

post or stake fixed in the ground or any notice or other matter
put up, inscribed or placed, by or under the authority of the
Board; or
(b) obstructs any person acting under the orders or the directions of

trade effluent into a ‘[stream or well or sewer or on land], the

provisions of section 25 shall, so far as may be, apply in relation to
such person as they apply in relation to the person referred to in that
section subject to the modification that the application for consent to
be made under sub-section (2) of that section l[shall be made on or
before such date as may be

(j) Substituted by section 23 Act 53 of 1988 for ‘six months’ (wef 29

September 1988).

(k) Substituted by section 24 Act 53 of 1988 for ‘one year’ (wef 29

September 1988).

(l) Substituted by section 13, Act 44 of 1978 for certain words.

(m) Substituted by section 22, Act 53 of 1988 for ‘one thousand rupees’
(wef 29 September 1988).

(n) Inserted by section 25, Act 53 of 1988 (wef 29 September 1988).

specified by the State Government by notification in this behalf in the
Official Gazette].
 the Board from exercising his powers and performing his
functions under this Act; or
(c) damages any works or property belonging to the Board; or
(d) fails to furnish to any officer or other employee of the Board
any information required by him for the purposes of the Act; or
(e) fails to intimate the occurrence of any accident or other
unforeseen act or event under section 31 to the Board and other
authorities or agencies as required by that section; or
(f) in giving any information which he is required to give under
this Act, knowingly or wilfully makes a statement which is false
in any material particular; or
(g) for the purpose of obtaining any consent under section 25 or
section 26, knowingly or wilfully makes a statement which is
false in any material particular;

shall be punished with imprisonment for a term which may extend to

three months or with fine which may extend to m[ten thousand
rupees] or with both.

5. Penalty for Contravention of Certain Provisions of the Act

Section 45A provides that:

n
[Whoever contravenes any of the provisions of this Act or fails to
comply with any order or direction given under this Act, for which no
penalty has been elsewhere provided in this Act, shall be punishable
with imprisonment which may extend to three months or with fine
which may extend to ten thousand rupees or with both, and in case of a
continuing contravention or failure, with an additional fine which may
extend to five thousand rupees for every day during which such
contravention or failure continues after conviction for the first such
contravention or failure.]

6. Publication of Names of Offenders

Section 46 of the Act provides that:

If any person convicted of an offence under this Act commits a like

offence afterwards, it shall be lawful for the court before which the
second or subsequent conviction takes place to cause the offender’s
name and place of residence, the offence and the penalty imposed to be
published at the offender’s expense in such newspapers or in such other
manner as the court may direct and the expenses of such publication shall
be deemed to be part of the cost attending the conviction and shall be
recoverable in the same manner as fine.

7. Offences by Companies
Section 47 of the Act provides for the offences committed by the
companies and attributes criminal liability to the corporate officials.
Section 47 of the Act contains two clauses. Sub-section (1) of section
47 provides that:

Where an offence under this Act has been committed by a company,

every person who at the time the offence was committed was in charge of,
and was responsible to the company for the conduct of the business of
the company, as well as the company, shall be deemed to be guilty of
the offence and shall be liable to be proceeded against and punished
accordingly.

This is followed by a proviso which exculpates a person from being

liable to punishment under the Act if he proves that the offence was
committed without his knowledge or that he exercised due diligence to
prevent the commission of such offence. Obviously, the proviso
mitigates the rigours of the first clause of section 47 and absolves a
person of criminal liability in case of the proof of lack of knowledge or
exercise of due diligence by him to prevent the commission of such
offence. Sub-section (2) provides that:

Notwithstanding anything contained in sub-section (1), where an offence

under this Act has been committed by a company and it is proved that the
offence has been committed with the consent or connivance of, or is
attributable to any neglect on the part of any director, manager, secretary or
other officer of the company, such director, manager, secretary or other
officer shall also be deemed to be guilty of that offence and shall be liable
to be proceeded against and punished accordingly.

The second clause of section 47 is not confined to a person in charge of

the company but applies to every officer of the company, however
small, he may be. It does not require actual participation or mental
support of the officer in the commission of the offence. If a company’s
production manager or technical director has been remiss in ensuring
that the pollution regulations have been strictly complied with, he
would be liable to be punished for the offence which might have been
committed under the Act. Such person would not be exonerated of
criminal liability by virtue of the fact that he was miles away from the
scene of the offence or did not sanction its commission or had been
unaware of it. However, his consent or connivance or neglect has to be
proved.

In case legal proceedings are initiated against corporate officials for

commission of an offence under the Water (Prevention and Control of
Pollution) Act, such officials can challenge the actions against them by
initiating motions to quash them. Section 482 of the Criminal
Procedure Code makes a room for the initiation of motions by
corporate officials to quash the action against them by recognising the
inherent powers of the High courts to prevent abuse of the judicial
process or to secure the ends of justice.

The case of UP Pollution Control Board v Modi Distillery 63 involves

the application of section 25, 26, 44 and 47 of the Water (Prevention
and Control of Pollution) Act 1974. The issue involved in this case was
whether the Chairman, Vice-Chairman, Managing Director and
members of the Board of Directors of Messrs Modi Industries Ltd, the
company owning the industrial unit called Messrs Modi Distillery at
Modinagar could be proceeded against on a complaint against the said
industrial unit namely, Messrs Modi Distillery. The facts of the case
were that Messrs Modi Industries Ltd was a parent company registered
under the Companies Act having diversified business activities. Prior
to the commencement of the Water (Prevention and Control of
Pollution) Act 1974, it had established an industrial unit called Messrs
Modi Distillery at Modinagar engaged in the business of manufacture
and sale of industrial alcohol. During the process of manufacture of
such industrial alcohol, the said industrial unit discharged highly
noxious and polluted trade effluents into the Kali river through the
Kadrabad drain which is a stream within the meaning of section 2(j) of
the Water (Prevention and Control of Pollution) Act and thereby
caused continuous pollution of the said stream without the consent of
the Board. Under the provisions of section 26 as amended, it has been
made mandatory for every existing industry to obtain the consent of the
Board for discharging its trade effluent into a stream or well or sewer
or land. In accordance with the provisions of sections 25(1) and 26, the
company Modi Industries Ltd was required to submit an application for
consent of the Board in the prescribed form along with the prescribed
consent fee and the particulars. Instead of the parent company, its
industrial unit, namely Modi Distillery applied to the Board for the
grant of consent to discharge its trade effluents into the stream. The
Board found the application as incomplete in many respects and
informed the said industrial unit with regard to the discrepancies and
particulars wanting. The respondents neither responded nor rectified
the discrepancies. Accordingly, the Board refused to grant consent in
public interest since the application of the respondents was found
incomplete in many respects and also because the said industrial unit
did not had proper arrangements for treatment of its highly polluted
trade effluents. Thereafter, the Board issued a notice under section 20
of the Act directing the company to furnish certain information
regarding the particulars and names of the Managing Director,
Directors and other persons responsible for the conduct of the company
but the respondents did not furnish the information called for. This was
followed by two subsequent letters of the Board wherein the attention
of the respondents was drawn to the fact that they were violating the
provisions of the Act and thereby rendering themselves liable to be
punished under section 44 of the said Act for contravention of the
63
. AIR 1988 SC 1128.
provisions of sections 25 (1) and 26. Finally, the Board lodged a
complaint against the respondents under section 44 of the Act in the
court of the Chief Judicial Magistrate, Ghaziabad. Unfortunately, the
complaint was not properly drafted. The name of the company was
wrongly described in the complaint. Instead of prosecuting the parent
company Modi Industries Ltd, it was averred that Modi Distillery, i.e.
the industrial unit was a company within the meaning of section 47 of
the Act and that it had been knowingly and willfully discharging its
polluted trade effluents into the stream. Despite the fact that the Board
launched prosecution against the industrial unit Modi Distillery and not
the parent company Modi Industries Ltd, other persons who were
arrayed as accused were the Chairman, Vice-Chairman, Managing
Director and other members of the Board of Directors of Messrs Modi
Industries Ltd, i.e. the company owning the industrial unit. The
Magistrate directed issue of process to the respondents. Aggrieved by
the orders, some respondents preferred revision before the Allahabad
High Court whereas others filed application under section 482 of CrPC
before the High Court. Allahabad High Court quashed the proceedings
on the ground that the complaint suffered from serious legal infirmity
and that there could be no vicarious liability saddled on the Chairman,
Vice-Chairman, Managing Director and other members of the Board of
Directors of the company under section 47 of the Act unless there was
a prosecution of the company, i.e. Modi Industries Ltd and to allow it
to continue would amount to an abuse of the process of the court.
Against the order of the Allahabad High Court, special leave petition
was preferred in the Supreme Court.

The question which arose in the appeal was whether the Chairman,
Vice-Chairman, Managing Director and members of the Board of
Directors were liable to be proceeded against under section 47 of the
Act in the absence of a prosecution of the company owning the said
industrial unit? Sub-section (1) of section 47 of the Act provides

Where an offence has been committed by a company, every person who at

the time of commission of the offence was in charge of and responsible to
the company for the conduct of business of the company as well as the
company shall be deemed to be guilty of the offence and shall be liable to be
proceeded against and punished accordingly.

The proviso to section 47(1) of the Act, however, engrafts an

exception in the case of any such person if he were to prove that the
offence was committed without his knowledge or that he exercised due
diligence to prevent the commission of such offence. Furthermore, the
proviso shifts the burden on the delinquent officer or servant of the
company responsible for the commission of the offence. The burden is
on him to prove that he did not know of the offence or connived in it or
that he had exercised due diligence to prevent the commission of such
offence.
 Sub-clause (2) of section 47 provides that:

notwithstanding anything contained in sub-section (1), where the offence

under the Act has been committed by a company and it is proved that the
offence has been committed with the consent or connivance of or is
attributable to any neglect on the part of any director, manager, secretary or
other officer of the company, such director, manager, secretary or other
officer of the company shall also be deemed to be guilty of that offence and
shall be liable to be proceeded against and punished accordingly.

On a combined reading of sub-sections (1) and (2) of section 47, the

Supreme Court had no doubt that the Chairman, Vice-Chairman,
Managing Director and members of the Board of Directors of Messrs
Modi Industries Ltd the company owning the industrial unit Messrs
Modi Distillery could be prosecuted as having been in charge of and
responsible to the company for the business of the industrial unit Messrs
Modi Distillery owned by it and could be deemed to be guilty of the
offence they were charged with. The High Court failed to bear in mind
that this situation has been brought about by the industrial unit Messrs
Modi Distillery who deliberately did not furnish the information called
for regarding the particulars and names of Managing Director,
Directors and other persons responsible for the conduct of the
company. Having wilfully failed to furnish the requisite information to
the Board, the Supreme Court held that it would not be open to the
Chairman, Vice-Chairman, Managing Director and other members of
the Board of Directors to seek court’s assistance to derive advantage
from the lapse committed by their own industrial unit. The Supreme
Court attributed the technical flaw in the complaint to the failure of the
industrial unit to furnish the requisite information called for by the
Board. The Supreme Court stated that it would be travesty of justice if
the big business house of Messrs Modi Industries Ltd is allowed to
defeat the prosecution launched and avoid facing the trial on a
technical flaw which is not incurable for their alleged deliberate and
wilful breach of the provisions contained in sections 25(1) and 26
made punishable under section 44 read with section 47 of the Act. The
Supreme Court expressed disappointment over the functioning of the
Pollution Control Boards and termed the present case as of sheer
negligence on the part of Board officials who should have drafted the
complaint with greater circumspection and should not have left any
technical flaw which would invalidate the initiation of the prosecution
allowing the respondents to escape the consequences of the breaches
committed by them of the provisions of the Act with impunity. The
Supreme Court allowed the appeal setting aside the orders of the High
Court and restoring the directions of the Magistrate concerning the
issue of process.

In Nalin Thakor and Ors v State of Gujarat and Ors64 two conflicting
64
. 2004 (2) SCALE 68.
judgements were considered, i.e. Municipal Corporation of Delhi v
Ram Kishen Rohtagi65 and State of Haryana v Brijlal Mital66. It was
held:

The core question that arises in the context of Criminal Case No. 6 of
1990, filed by the respondents against the appellants under sections 24
and 25, punishable under sections 43 and 44 read with Section 47 of the
Water (Prevention and Control of Pollution) Act 1974 (hereinafter
referred to as ‘the Act’). On the complaint, the Magistrate, taking
cognizance of the offence, ordered issue of the process to the appellant
herein. It is at this stage the appellants, who were Directors of the
Company, filed a Criminal Miscellaneous Application under Section
482 of the Code of Criminal Procedure, 1975 before the High Court for
quashing the proceedings pending before the 5th Joint Judicial
Magistrate, First Class at Bhavnagar, being Criminal Case No. 6 of
1990. The Gujarat High Court rejected the said Criminal Miscellaneous
Application. It is against the said order and judgment of the High
Court, the appellants are in appeal before us.

We have looked into the facts of this case and find that as far back as on
27 April 1989, the Factor Manager wrote to the ‘Gujarat Pollution
Control Board, Gandhi Nagar that the FRP lining provided in the Oil
and Grease trap of the Effluent Treatment Plant has been damaged at
some places and they are taking a short shutdown on the said tank and
efforts are being made to repair/replace the FRP lining. An assurance
was also given to restart the plant as soon as it is repaired. It is not
disputed that the sample of the water was taken on 6th May 1989, i.e.
immediately after the information was sent to the Board as mentioned
in the show cause notice dated 17 August 1989. We further find that the
issue of summons to the appellants was also without an application of
mind as nothing was said in the complaint or in the statement recorded
by the 5th Joint Judicial Magistrate before issue of summons that the
offence was committed with the consent or connivance of or was
attributable to any negligence on the part of the appellants. Sub-section
(2) of section 47 requires that where an offence under this Act has
been committed by a company and it is proved that the offence has been
committed with the consent or connivance of, or is attributable to any
neglect on the part of, any director, manager, secretary or other officer
of the company, such director, manager, secretary or other officer shall
also be deemed to be guilty of that offence and shall be liable to be
proceeded against and punished accordingly. There being no allegation
as regards the requirement of sub-section (2) of Section 47, the 5th Joint
Judicial Magistrate committed an error in issuing summons to the
appellants herein.

9. Offences by Government Departments

65
. (1983) 1 SCC 1.
66
. (1988) 5 SCC 343.
Section 48 of the Act deals with the offences committed by the
Government Departments. It provides that:

Where an offence under this Act has been committed by any Department of
Government, the Head of the Department shall be deemed to be guilty of
the offence and shall be liable to be proceeded against and punished
accordingly.

The proviso exculpates the Head of the Department from the

liability to any punishment as aforesaid if he proves that the offence
was committed without his knowledge or that he exercised all due
diligence to prevent the commission of such offence.

X. OVERRIDING EFFECT

Section 60 of the Act provides that:

The provisions of this Act shall have overriding effect

notwithstanding anything inconsistent therewith contained in any
enactment other than this Act.

This provision gives effect to the rule that lex specialis prevails over
lex generalis in case of inconsistency between the two. Accordingly,
Water (Prevention and Control of Pollution) Act, being special law to
prevent and control the pollution of water, prevails over any inconsistent
general law on the subject.

XI. POWER OF CENTRAL GOVERNMENT TO SUPERSEDE THE

CENTRAL BOARD

Section 61 of the Act confers power on the Central Government to

supersede the Central Board or the Joint Board for a period not exceeding
one year, by notification in the Official Gazette. It provides that:

If at any time the Central Government is of the opinion:

(a) that the Central Board or the Joint Board has persistently
made default in the performance of its 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 Central Government may, by
notification in the Official Gazette, supersede the Central Board
or such Joint Board, as the case may be, for such period not
exceeding one year, as may be specified in the notification.

At that event, all the powers and functions of the Central or Joint Board
shall be discharged or performed by such person as the Central Government
may direct and all the properties of the Central Board or the Joint Board
shall vest in the Central Government till the Central Board or the Joint Board is
reconstituted. On the expiration of the period of supersession, the Central
Government may either extend the period of supersession for a further term
not exceeding three months or reconstitute the Central Board or the Joint
Board.

Provided that before issuing a notification under this sub-section for

the reasons mentioned in clause (a), the Central Government shall
give a reasonable opportunity to the Central Board or such Joint
Board, as the case may be, to show cause why it should not be
superseded and shall consider the explanations and objections, if any,
of the Central Board or such Joint Board, as the case may be.

(2) Upon the publication of a notification under sub-section (1)

superseding the Central Board or any Joint Board,—

(a) all the members shall, as from the date of supersession

vacate their offices as such;
(b) all the powers, functions and duties which may, by or
under this Act, be exercised, performed or discharged by the Central
Board or such Joint Board shall, until the Central Board or the Joint
Board, as the case may be, is reconstituted under sub-section (3) be
exercised, performed or discharged by such person or persons as to
Central Government may direct;
(c) all property owned or controlled by the Central Board
or such Joint Board shall, until the Central Board or the Joint Board,
as the case may be, is reconstituted under sub-section (3) vest in the
Central Government.

(3) On the expiration of the period of supersession specified in

the notification issued under sub-section (1), the Central
Government may—

(a) extend the period of supersession for such further term, not
exceeding six months, as it may consider necessary; or

(b) reconstitute the Central Board or the Joint Board, as the case
may be, by fresh nomination or appointment, as the case may be, and
in such case any person who vacated his office under clause (a) of
sub-section (2) shall not be deemed disqualified for nomination or
appointment:

Provided that the Central Government may at any time before the
expiration of the period of supersession, whether originally specified
under sub-section (1) or as extended under this sub-section, take
action under clause (b) of this sub-section.

XII. POWER OF STATE GOVERNMENT TO SUPERSEDE THE

STATE BOARD

Section 62 of the Act confers power on the State Government to supersede the
State Board for a period not exceeding one year, by notification on the
Official Gazette.

If at any time the State Government is of the opinion:

(a) that the State Board has persistently made default in the
performance of its functions imposed on it by or under this
Act; or
(b) that the circumstances exist which render it necessary in 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 be specified in the notification.

Section 62 (2) clarifies that the provisions of section 61 after

publication of the order of supersession in the Official Gazette apply in
case of supersession of the State Board by the State Government.

XIII. POWERS OF CENTRAL AND STATE GOVERNMENT

TO MAKE RULES

Section 6367 and section 6468 of the Act confer powers on the Central
Government and the State Government respectively to make rules at

67
. Section 63 states: Power of Central Government to make rules.—
(1) The Central Government may, simultaneously with the constitution
of the Central Board, make rules in respect of the matters specified in
sub-section (2):

Provided that when the Central Board has been constituted, no such
rule shall be made, varied, amended or repealed without consulting the
Board.

(2) In particular, and without prejudice to the generality of the foregoing

power, such rules may provide for all or any of the following matters,
namely:

(a) the terms and conditions of service of the members (other than the
chairman and member-secretary) of the Central Board under sub-
section (8) of section 5;

(b) the intervals and the time and place at which meetings of the
Central Board or of any committee thereof constituted under this
Act, shall be held and the procedure to be followed at such
meetings, including the quorum necessary for the transaction of
business under section 8, and under sub-section (2) of section 9;
the time of the constitution of the Boards concerning the performance
of their functions.

XIV. INADEQUACIES AND INFIRMITIES

The Water (Prevention and Control of pollution) Act suffers from various
inadequacies and infirmities. The legal measures to prevent and control
water pollution involve scientific complexities. Accordingly, the
authorities established under the Water (Prevention and Control of
Pollution) Act require combination of scientific, technological and
judicial inputs to come to grips with the problem of water pollution. The

(c) the fees and allowances to be paid to such members of a committee

of the Central Board as are not members of the Board under sub-
section (3) of section 9;

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

(e) the terms and conditions of service of the chairman and the member-
secretary of the Central Board under sub-section (9) of section 5
and under sub-section (1) of section 12;

(f) conditions subject to which a person may be appointed as a

consulting engineer to the Central Board under sub-section (4)
of section 12;

(g) the powers and duties to be exercised and performed by the

chairman and the member-secretary of the Central Board;
p
[***]

(j) the form of the report of the Central Board analyst under sub-
section (1) of section 22;

(k) the form of the report of the Government analyst under sub-
section (3) of section 22;
q
[(l) the form in which and the time within which the budget of the
Central Board may be prepared and forwarded to the Central
Government under section 38;

(11) the form in which the annual report of the Central Board may be
prepared under section 39;]

(m) the form in which the accounts of the Central Board may be
maintained under section 40;
constitution of the Pollution Control Boards and the Appellate Authority
envisaged under the Water (Prevention and Control of Pollution) Act
does not make the inclusion of scientific, technological or judicial
persons mandatory. This results in the inclusion of bureaucrats in the
constitution of these authorities and the experts are ignored. Thus, the
authorities find themselves ill equipped in terms of skill as well as
resources to perform the functions of prevention, control or abatement
of water pollution. Even the courts which try environmental protection
cases find themselves handicapped due to lack of scientific inputs.

The Water (Prevention and Control of Pollution) Act 1974, does not

r
[(mm) the manner in which notice of intention to make a complaint
shall be given to the Central Board or officer authorised by it under
section 49;]

(n) any other matter relating to the Central Board, including the
powers and functions of that Board in relation to Union territories;

(o) any other matter which has to be, or may be, prescribed.

(3) Every rule made by the Central Government under this Act shall be
laid, as soon as may be after it is made, before each House of Parliament
while it is in session for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and it,
s
[before the expiry of the session immediately following the session or the
successive sessions aforesaid], both Houses agree in making any
modification in the rule or both Houses agree that the rule should not be
made, the rule shall thereafter have effect only in such modified form or
be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.
68
. Section 64 states: Power of State Government to make rules.—(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 be 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
make any reference to the concept of sustainable development,
‘precautionary principle’ or the ‘polluter pays principle’ which are
fundamental principles of international environmental jurisprudence
and form part of the international customary law. However, the
Supreme Court of India has demonstrated exemplary activism in reading
these principles not only in the constitutional provisions contained in
article 48A and article 51A(g) but also in the environmental
legislations and directed the authorities, established under the
environmental legislations to apply these principles in taking decisions.

The Water (Prevention and Control of Pollution) Act 1974, does not

sub-section (8) of section 5;

(b) the time and place of meetings of the State Board or of any
committee of that Board

(o) Substituted by section 20, Act 44 of 1978 for clause (d).

(p) Clauses (h) and (i) omitted by section 20, Act 44 of 1978.

(q) Substituted by section 27, Act 53 of 1988 for clause (1) (wef 29
September 1988).

(r) Inserted by section 27, Act 53 of 1988 (wef 29 September 1988).

(s) Substituted by section 20, Act 44 of 1978 for certain words.

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 t[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 (1) of section 12;

(f) the conditions subject to which a person may be appointed as a

consulting engineer to the State Board under sub-section (4) of
section 12;
even provide for the tortuous liability of the polluter for causing water
pollution. It neither holds the polluter liable to compensate the victims
of pollution nor to bear expenses for the adoption of remediation
measures.

The Water (Prevention and Control of Pollution) Act 1974, does not
make environmental impact assessment mandatory for the grant of
consent to an industrial unit. It does not even provide for
environmental audit.

(g) the powers and duties to be 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;

(1) the manner in which inquiry under sub-section (3) of section 25

may be made in respect of an application for obtaining consent of
the State Board and the matters to be taken into account in granting
or refusing such consent;

(m) the form and manner in which appeals may be filed, the fees
payable in respect of such appeals and the procedure to be followed
by the appellate authority in disposing of the appeals under sub-
section (3) of section 28;
u
[(n) the form in which and the time within which the budget of the
State Board may be prepared and forwarded to the State
Government under section 38;

(nn) the form in which the annual report of the State Board may be
prepared under section 39;]

(o) the form in which the accounts of the State Board may be
maintained under sub-section (1) of section 40;
v
[(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
References and Suggested Readings:

1. C.M. Jariwala,Environment and Justice

2. A.K.Tiwari,Environmental Laws In India
3. Dr.GurdipSingh,Environmental Law in India
4. Divan,RosencranzEnvironmental Law & policy in India
5. P.Leelakrishan, An Environmental Law in India
6. S. C. Shastri, Environmental Law

section 49;]

(p) any other manner which has to be, or maybe, prescribed.

(t) Inserted by section 21, Act 44 of 1978.

(u) Substituted by section 28, Act 53 of 1988 for clause (n) (wef 29
September 1988).

(v) Inserted by section 28, Act 53 of 1988 (wef 29 September 1988).