Water Pollution (Prevention and Control.pptx

talks about the facets of water pollution and its legislation in india

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

2. Introduction Water, the sustenance of the life and life cycle – to be preserved and protected from all types of pollutants In the Rigveda, the Atharvaveda, and the Yajurveda – we find many verses in praise of Lord Varun (God of Water) and Lord Indra, showing that in the Vedic era, water is regarded sacred, not to be polluted. In Manusmriti – the first systematic treatise on various laws, water is regarded as a creator and source of life on earth. Principle 2 of the Stockholm Declaration, 1972 - The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. Narmada Bachao Andolan v Union of India (AIR 2000 SC 3751) - “ Water is one element without which life cannot sustain. Therefore, it is to be regarded as one of the primary duties of the Government to ensure the availability of water to the people .” Susetha v. State of T. N. (2006) 6 SCC 543 – “The water bodies are required to be retained. Such requirement is envisaged not only in view of the fact that the right to water as also quality life are envisaged under Article 21 of the Constitution of India, but also in view of the fact that the same has been recognized in Article 47 and 48-A of the Constitution of India. Article 51-A of the Constitution of India furthermore makes a fundamental duty of every citizen to protect and improve the natural environment, including forest, lakes, rivers and wildlife.”

3. Legal History The pollution of water is a tortious act. In Pakkle v. P. Aiyasami Ganapathi (1968) SCC OnLine Mad I, the Madras High Court declared that altering the natural quality of water whereby it is rendered less fit for any purpose for which in its natural state it is capable of being used gives cause of action in nuisance. In this case a water tank, in which the villagers had a common right to take water from, was polluted by the Zamindar of the village who placed some salt pans in the tank. The suit was brought in a representative capacity. The pollution of tank water was found actionable. But in such cases, it is necessary to prove actual damage or proof of imminent danger. The first Act concerning control of water pollution in India was the Shore Nuisance (Bombay and Kolaba ) Act, 1853, though operational only in Bombay and Kolaba , it authorised the Collector of Land Revenue to issue notice to the party concerned requiring it to remove nuisance. Later, several enactments came throughout history, including the Easement Act, 1882 – recognizing the doctrine of riparian rights to unpolluted water, the Factories Act, 1948 – having provisions regarding the disposal of water and effluents of a factory. Irrigation - The Northern India Canal and Drainage Act, 1873, and the East India Irrigation and Canals Act, 1859 regulated the water supply of these areas - prohibiting the corrupting and fouling of the water of any canal Criminal Laws - The Indian Penal Code, 1860 – holding a person liable for public nuisance (Section 268-269) and punishing him for causing water pollution (Section 277) or any committing any mischief in this regard (Section 425-426). Likewise, the Code of Criminal Procedure through Sections 133 and 144 have also addressed the issue of water pollution. ( Municipal Council, Ratlam v. Vardichand , (1980) 4 SCC 162))

4. Legal History Water is a State subject under the Constitution, however, the Centre was requested by some of the States under Article 252 of the Constitution to pass the law. In pursuance of clause (1) of Article 252 of the Indian Constitution, resolutions were passed by all the Houses of the Legislatures of the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura, and West Bengal to the effect that the matters relating to water should be regulated in those States by Parliament by law. The main purpose of the Act is to ensure that trade effluents discharged into the water are so regulated as not to cause any health hazard to the public.

5. Objectives of the Act To provide for the prevention and control of water pollution To maintain or restore the wholesomeness of water To establish Boards for the prevention and control of water pollution To confer and assign to such Boards necessary powers and functions

6. Definitions (Section 2) (d) “occupier”, in relation to any factory or premises, means the person who has control over the affairs of the factory or the premises, and includes, in relation to any substance, the person in possession of the substance. (e) “pollution” means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of acquatic organisms.

7. Definitions (Section 2) (j) "stream" includes- ( i ) river; (ii) water course (whether flowing or for the time being dry); (iii) inland water (whether natural or artificial); (iv) sub-terranean waters; (v) sea or tidal waters to such extent or, as the case may be, to such point as the State Government may, by notification in the Official Gazette, specify in this behalf;

8. Definitions (Section 2) (g) “sewage effluent” means effluent from any sewerage system or sewage disposal works and includes sullage from open drains. (gg) “sewer” means any conduit pipe or channel, open or closed, carrying sewage or trade effluent. (k) “trade effluent” includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any 3 [industry, operation or process, or treatment and disposal system], other than domestic sewage.

9. Boards under the Act Central Pollution Control Board (CPCB) – appointed by the Central Government and will consist of 17 members, including a Chairman and other members (Section 3) State Pollution Control Board (SPCB) – appointed by the State Government and will consist of 17 members, including a Chairman and other members (Section 4) Joint Boards – appointed by an agreement between the t wo or more Governments of contiguous States or the Central Government (in respect of one or more Union territories) and one or more Governments of States contiguous to such Union territory or Union territories and will consist of a Chairman and other members (Section 13)

10. Functions of the Boards - CPCB SECTION 16: Central Pollution Control Board (CPCB): The main function is to promote the cleanliness of streams and wells in different areas of the States. The Central Board may perform all or any of the following functions: Advise the Central Government on any matter concerning the prevention and control of water pollution; Co-ordinate the activities of the State Boards and resolve disputes among them; 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; 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; Organise through mass media a comprehensive programme regarding the prevention and control of water pollution;

11. Functions of the Boards - CPCB 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; 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; 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; Plan and cause to be executed a nation-wide programme for the prevention, control or abatement of water pollution; perform such other functions as may be prescribed. 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.

12. Functions of the Boards - SPCB SECTION 17: The functions of the State Pollution Control Board are: 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; to advise the State Government on any matter concerning the prevention, control or abatement of water pollution; to collect and disseminate information relating to water pollution and the prevention, control or abatement thereof; to encourage, conduct and participate investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution; to collaborate with the Central Board in organising the training of persons engaged or to be engaged in programmes relating, to prevention, control or abatement of water pollution and to organise mass education programmes relating thereto; 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;

13. Functions of the Boards - SPCB SECTION 17: The functions of the State Pollution Control Board are: 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; 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; to evolve methods of utilisation of sewage and suitable trade effluents in agriculture; 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; 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;

14. Functions of the Boards - SPCB SECTION 17: The functions of the State Pollution Control Board are: to make, vary or revoke any order— for the prevention, control or abatement of discharges of waste into streams or wells; 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; to lay down effluent standards to be complied 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; 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; 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. 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.

15. Subordination of the Boards (Section 18) The Central Board shall be bound by such directions in writing as the Central Government may give to it. Every State Board shall be bound by such directions in writing as the Central Board or the State Government may give to it. However, where a 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. If the State Board defaulted in performing any such directions from the Central Board which causes a grave emergency and is required in the public interest, the Central Government can direct the Central Board to perform any of the functions of the State Board.

16. Power of State Government Section 19 – Power to restrict the application of the Act to certain areas - The State Government, after consultation with, or on the recommendation of, the State Board, believes that the provisions of this Act need not apply to the entire State but to such areas suffering from water pollution, it may, by notification in the Official Gazette, restrict the application of this Act and its provisions only to such area or areas in the State. The State Government will have the power to alter or constitute the boundaries of such water pollution, prevention, and control areas. This Section did not enable the State to grant exemption to a particular industry in a prohibited area for the location of a polluting industry. Exercise of such power is violative of the right to clean water under Article 21 of the Indian Constitution. (A.P. Pollution Control Board (II) v. M. V. Nayudu (2001) 2 SCC 62 )

17. Powers of State Board 1. Section 20 – Power to obtain information - T he State Board or any officer empowered can make surveys, gauge and keep records of the flow or volume and other characteristics of any stream or well and obtain information regarding them. The Board may give directions requiring any person to give information as to the abstraction of water from a stream or well which is substantial in relation to the flow or volume of the stream or well. The Board can further give directions to any person who is in charge of any industry, operation or process, or treatment and disposal system 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 2. Section 21 - Power to take samples of effluents and procedure to be followed - A State Board or any officer can take samples of water from any stream or well, sewage, or trade effluent. Such sample is admissible as evidence in a legal proceeding if the necessary procedures are complied with: (1) a prior notice of his intention to take sample; (2) divide the sample in two parts in the taken presence of the occupies; (3) such sample should be marked, sealed and signed by both the persons (person taking the sample and occupier or his agent); (4) one of the samples to be sent to the laboratory established or recognized by Central or State Board; After the analysis the report to be sent to the State Board, occupier or his agent. Such report can be produced before the court of law. (Section 22)

18. Powers of State Board In Delhi Bottling Co. (P) v. Central Board for Prevention & Control of Water Pollution, (1985) SCC OnLine Del 263 – the court ruled that the procedure laid down under Section 21 must strictly be complied with.

19. Powers of State Board 3. Section 23 – Power of entry and inspection - Any person empowered by a State Board in this behalf shall have a right at any time to enter any place or vessel for: Performing any function of the Board Determining whether the industry, etc. is abiding by its duties/or carrying out the directions, and orders of the Board. Examining any plant, record , register, document, or any other material object or for searching for any place in which he has reason to believe that an offence has been or is being or is about to be committed and for seizing any such plant, record, register, document or other material objects, if he has reason to believe that it may furnish evidence of the commission of an offence.

20. Powers of State Board 4. Section 24 - Prohibition on use of stream or well for disposal of polluting matter, etc.— N o person shall knowingly cause or permit any poisonous, noxious, or polluting matter to enter into any stream or well or sewer or on land. Likewise, no person shall knowingly cause or permit to enter into any stream any other matter which directly or in combination with any other matter impedes the proper flow of the water of a stream and which may aggravate the pollution substantially. A person shall not be guilty of an offence if: he has a right to construct, improve or maintain any streams, well building, bridge, weir, dam, dock, pier, drain, sewer, or deposit material for reclaiming land or to support or protect the banks or bed of stream, or 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 does accumulation of such material with the consent of the Board. Discharge of trade effluents into the River Ganga by Kanpur’s tanneries proves the State Board’s failure to take steps to prevent such discharges. In M.C. Mehta v. Union of India , the court held that the fact that such effluents were being first discharged in the municipal sewers did not absolve the tanneries from being proceeded against under Section 16, 17, and 24. In M.C. Mehta v. Kamal Nath , the court directed that the Himachal Pradesh PCB should not permit M/s Span Motel Ltd. To discharge its untreated effluents into River Beas, where it was found that the hotel was discharging its untreated effluents into the river amounting to non-compliance with Section 24 of the Act.

21. Powers of State Board 5. Section 25 - Restrictions on new outlets and new discharges – If a person establishes any industry, operation or process, or any treatment and disposal system, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land, he must obtain prior consent of the State Board. It is also applicable in bringing into use new or altered outlets. An application shall be made to the Board in a prescribed form and with prescribed fee. On the receipt of the application, the State Board may make such enquiry as it may deem fit. The Board may either grant or refuse the content for reasons to be recorded in writing. The consent may be granted with conditions relating to nature, composition, temperature, volume or rate of discharge of the effluent. The Supreme Court in M.V. Nayudu , clarified that the ‘prohibition’ of Section 25(1) extends even to the ‘establishment’ of the industry or taking of steps to that process. Therefore, before the consent of the PCB is obtained, neither can the industry be established nor can any steps be taken to establish it. Deemed Consent – When the Board fails to grant or refuse the consent for discharge within a period of four months, the consent ‘shall be deemed’ to have been given unconditionally on the expiry of four months.

22. Powers of State Board 6. Section 33 – Power of Board to make application to courts for restraining apprehended pollution of water in streams or wells - Where there is an apprehension by the Board that the water in any stream or well is likely to be polluted, the Board may make application to a Court of Metropolitan or the Judicial Magistrate of the First Class for restraining the person who is likely to cause water pollution. The court on the receipt of such application can make any order which it deems fit. In Delhi Bottling Co. (P) Ltd. v. Central Board for Prevention & Control of Water Pollution AIR (1986) Del 152 – it was declared by the Delhi High Court that if the treatment plant was not erected as per the ‘consent order’, a restraint order can be passed against the petitioners restraining them from discharging their effluents in the stream and thereby arrest causing pollution of the stream.

23. Powers of State Board 7. Section 32 - Emergency measures in case of pollution of stream or well – Where it appears to the State Board that any poisonous, noxious or polluting matter is present in any stream or well or on land by reason of the discharge of such matter in such stream or well or 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 to: i . removing that matter from the stream or well or on land ii. remedying or mitigating any pollution caused by its presence iii. issuing orders immediately restraining or prohibiting the person concerned from discharging any such polluting matter

24. Procedures under the Act Section 28 – Appeal – Any person aggrieved by an order made by the State Board can appeal against such order to the appellate authority constituted by the State Government. The Appeal should be made within a period of 30 days from the date on which such order is communicated to him. After giving an opportunity of being heard, to the appellant, the appellate authority can dispose of that appeal, and while deciding the appeal it can – annul any condition or substitute any condition. In A.P. Pollution Control Board, the court noted that there is an immediate need that in all the States and UTs, the appellate authorities under Section 28 of the Water Act and 31 of the Air Act shall always be a Judge of the High Court or higher and a scientist or group of scientists of high ranking and experience.

25. Procedures under the Act After the 2010 Amendment: Appeal lies to the National Green Tribunal (Section 33B) Any person aggrieved by,— (a) an order or decision of the appellate authority under section 28, made on or after the commencement of the National Green Tribunal Act, 2010; or (b) an order passed by the State Government under section 29, on or after the commencement of the National Green Tribunal Act, 2010; or (c) directions issued under section 33A by a Board, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.

26. Procedures under the Act Section 31 – Furnishing of information to State Board and other agencies in certain cases - If at any place where any industry, operation or process, or any treatment and disposal system or any extension is being carried on, due to accident or other unforeseen act or event, any poisonous, noxious or polluting matter is being discharged, or is likely to be discharged into a stream or well or sewer or on land and, as a result of such discharge, the water in any stream or well is being polluted, or is likely to be polluted, then the person incharge of such place shall forthwith intimate the occurrence of such accident, act or event to the State Board and such other authorities or agencies as may be prescribed. This duty to supply information is mandatory and its non-compliance attracts punishment under Section 42 of the Act.

27. Power to give directions Section 33A – Power to give directions – The Board is empowered in the exercise of its powers and functions under the Act, to issue any directions in writing to any person, officer or authority, and he shall be bound to comply with such directions. The power to issue directions includes: the closure, prohibition or regulation of any industry, operation or process; or the stoppage or regulation of supply of electricity, water or any other service. Non-compliance with such direction is punishable under Section 41(2). The Supreme Court in M. C. Mehta v. Union of India (Calcutta Tanneries case), (1997) 2 SCC 411 – held that since Calcutta tanneries were operating in violation of the mandatory provisions of the Water Act and the Environment (Protection) Act, directions of the Board for unconditional closure of the tanneries, relocation, payment of compensation by them for reversing the damage and for rights and benefits to be made available to their workmen was right.

28. Funds Fund of Central Board — The Central Board shall have its own fund, and all sums may be paid to it by the Central Government and through other receipts of the Board shall be carried to the fund of the Board. All payments by the Board shall be made therefrom. (Section 36) Fund of State Board — The State Board shall have its own fund, and the sums may be paid to it by the State Government and through other receipts of the Board shall be carried to the fund of the Board. All payments by the Board shall be made therefrom. (Section 37)

29. Penalty Section 41 Non-compliance with directions under Section 20 (2) or (3)- imprisonment upto t hree months or with fine which may extend to ten thousand rupees or with both. In case the failure continues - additional fine upto five thousand rupees for every day. Non-compliance with order/directions under Section 32 (1)(c), 32(2) or 33A- imprisonment not less than one year and six months upto six years with fine. In case the failure continues - additional fine upto five thousand rupees for every day. In case the failure continues beyond 1 year – imprisonment not less than 2 years upto 7 years with fine Section 42 Punishment for certain activities and non-compliances - imprisonment upto t hree months or with fine which may extend to ten thousand rupees or with both.

30. Penalty Section 43 Non-compliance with Section 24- imprisonment not less than one year and six months upto six years with fine. Section 44 Non-compliance with Section 25 and 26- imprisonment not less than one year and six months upto six years with fine. Repeated offender under Section 24, 25, and 26 - O n their second and on every subsequent conviction, be punishable with imprisonment not less than two years but which may extend to seven years and with fine. The Court before which the second or subsequent conviction takes for any like offence after previous conviction under the Act can cause to publish the offender’s name and place of residence, the offence and the penalty in such newspapers at the offender’s expense. (Section 46) Section 45A Punishment for offences for which no penalty is provided under the Act- imprisonment upto t hree months or with fine which may extend to ten thousand rupees or with both. In case the failure continues - additional fine upto five thousand rupees for every day.