Functions of PCB Under the

Water Act
Dr. Sairam Bhat
Associate Professor of Law
National Law School of India University.

The Problem
1. Water management/War for control of water
resources
2. Successive drought and growing scarcity are
creation of more government intervention
3. Water quality management in river and
stream, Ganga action plan, Yamuna river
pollution and other related cases

The Problem
4. Over exploitation: Punjab utilizes 98.34% of
its ground water, where as Haryana utilizes
75.61% and Orissa 15.22 %
5. Contamination: Surface and ground by
waste mismanagement; land contamination.
Increase of salinity etc.
6. The National Water Policy 2002 speak large
in sense of command and control of the
government in water.

Water:
what is its Characteristics
Is it a good
[common and public]
Is it a service
[ambient resource]

Is it an investment
[interlinked with management of other
resources]

How to treat water

[Tragedy of the Commons]
Water Right [Fundamental right]
Rights in relation to water [legal right]

Water Act 1974

Background
Definitions of Pollution
Alteration of the physical, chemical or
biological properties of water
Discharge of any sewage or trade effluent or
any other liquid, gaseous or solid substance
into water [whether directly or indirectly]

M C Mehta [Ganga Pollution Case]

CPCB/SPCB
Power to obtain information: sec. 20
Failure to give information, fine Rs 10,000 or 3 month imprisonment

Power to take samples of effluents for analysis [ se. 21]

M/s Delhi Bottling Co Pvt. Ltd v CBCB AIR 1986 Del. 152
Modi Industries v U.P Pollution control Board
Samples not taken without the presence of the Occupier. Who is an
Occupier ? Chairman ? Can there be Vicarious liability that of the Master
for the act of servant ?

Power to entry and inspection [sec. 23]

Examine any record, plant, document or any material object
Search and seizure shall be made in accordance with CPC

Power to impose restriction on new outlets and new discharge

[sec. 25]
Narula Dyeing and Printing works v UOI 1995
Consent from PCB does not mean right to pollute

A P Pollution control Board v M V Nayudu 2001

Collector gave permission for land conversion for a industry, PCB refused.
Can the law of promissory estoppels be applied ? Is the consent from the
PCB independent of all other licenses ?

SPCB: Power contd.

Power to refuse or withdraw consent: sec. 27
Mahabir Soap v UOI 1995: Any refusal of consent is appeal able
under the State rules

Power to carry out certain works: sec. 30

Power to carry out emergency operations in case of
pollution of streams or well sec. 32
Power to make application to courts for restraining
apprehended pollution of water sec. 33
Application shall be made to a Judicial Magistrate

Power to give directions

Closure, prohibition or regulation of any industry, operation or
process
Kedia Leather Company Case: Speaker Order
Stoppage or regulation of electricity, water or any other services.

Offences under the Act

Citizen suit provision: Any pvt individual
may prefer a complaint to the Judicial
magistrate after giving notice of 60 days to
SPCB
Fine and Imprisonment
UP Pollution control Board v Mohan
Meakins 2000
For imprisonment, head of department shall
be responsible.

Judicial Activism in Water

Vellore Citizens Welfare Forum case JT
1996 (7) SC 375
M. C Mehta v Kamal Nath 1997 (1) SCC
388

Ground Water
Law, policy and Management
Jagannath v Union of India AIR 1995 SC
F. K Husain v Union of India AIR 1990, Ker. 321 at 323

Puttappa Honnapa Talawar AIR 1998 Kar.

10
Enviro Legal Action v Union of India AIR
1996 SC 1446

The Problem
Low water rates are also a reason for
non compliances.
Inter State water disputes.
Exploited as an Easementary right
Interlinking of rivers

Solution ?

Rain Water Harvesting ?

Dam Building ?
Privatization ?
Coca Cola, Plachimada Unit, (Palakkad
district)

Water Act 1974

Was an immediate reaction to the
Stockhlom conference
Was replicated from a Scottish Act, which
was repelled in 1973.
Water being a state subject, Parliament
pursuant to enabling resolution by twelve
states, under Art. 252(1) of the
Constitution passed the above Act.

Pollution means:
Contamination of water
Alteration of the physical, chemical or
biological properties of water
Discharge of any sewage or trade effluent
or any other liquid, gaseous or solid
substance into water [whether directly or
indirectly]

M/s Delhi Bottling Co Pvt. Ltd v Central Board for the

Prevention and Control of Water Pollution AIR 1986 Del.
152

The Court should judicious thinking and strictly following the

procedure showed a blind eye toward the ongoing environmental
degradation. The Company was carrying on the business of
preparation of soft drinks under the trade name Gold Spot, Limca,
were discharging trade effluents which fill in the river Yamuna.
Though the Company had duly obtained the consent under the
Water Act had failed to establish a treatment plant in the factory
inspite of repeated notices issued by the PCB. The PCB had failed
to adhere to the sampling procedure so established by the Water
Act, wherein samples of such trade effluents must be taken in two
containers and the sample must be tested in a recognized
Government lab. Failing this procedure the High Court dropped the
charges against the company. The Courts reasoning was that the
samples were not taken in strict compliance with Sec. 21 and are
inadmissible in evidence.

C Mehta v Union of India[1] also known as the Kanpur Tanneries or

Ganga Pollution case AIR 1988 SC 1037

3 judgments
1. In this case the court came down heavily on
the Nagar Mahapalikas. The court emphasized
that it is the Municipality of Kanpur that has to
near the major responsibility for the pollution of
the river near Kanpur city.
2. Kanpur tanneries case
3. Kolkatta tanneries case: 500 industries along
with banks of river ganga were covered by the
judgment

M. C Mehta v Kamal Nath 1997 (1)

SCC 388

The Supreme Court held that the notion that the public has right to expect certain land and
natural areas to retain their natural characteristics is finding its way into the law of the land.
The doctrine of public trust, rests on the principle that certain resources like air, seas,
waters and the forests have such a great importance to the people as a whole that it would
be wholly justified to make them a subject of private ownership. The doctrine enjoins upon
the government to protect the resources for the enjoyment of the general public rather
than to permit their use for private ownership or commercial purpose. The protection of
ecological values is amongst the purposes of public trusts. The state is the trustee of all
natural resources which are by nature meant for public use and enjoyment. It is under a
legal duty to protect and natural resources. The aesthetic use and the pristine glory of the
natural resources, the environment and the eco system of our country cannot be permitted
to be eroded for private, commercial or any other use unless the courts find it necessary,
in good faith, for the public good and in public interest to encroach upon the said
resources. Areas which are ecologically fragile and full of scenic beauty should not be
permitted to be converted into private ownership for commercial gains. The illegal
construction and callous interference with the natural flow of river Beas has degraded the
environment. It is now settled law that one who pollute the environment must pay to
reverse the damage caused by his acts. The polluter pays principle was upheld in the
present case. The court directed the Himachal Pradesh PCB to inspect the motel
premises, its treatment facilities and to re-direct the course of the river.

Vellore Citizens Welfare Forum case JT 1996 (7) SC 375

The Court held that even a major foreign exchange earner like leather industry
cannot have the right to destroy ecology, degrade the environment and pose a
health hazard. It cannot be permitted to expand or even to continue unless it
tackles the problem of pollution created by the said industry. The polluter
pays principle and precautionary principles are the law of the land. The
polluting industries were made absolutely liable to compensate for the harm
caused by them to villagers in the affected area, to the soil and to the
underground water and hence they were directed to take all necessary
measures to remove sludge and other pollutants lying in the affected area. An
authority was constituted by the Apex Court to investigate take mitigating
steps in reducing the ecological damage caused by the tanneries in this area..
The Authority shall direct the closure of the industry owner/ managed by
polluter in case he evades or refuse to pay compensation. This shall be in
addition to the recovery from him as arrears of land revenue. A Pollution fine
of Rs. 10,000 was imposed on each tanneries. The PCB to establish a
Common Effluent Treatment facility and to close down any tanneries which
fails to obtain the consent of the PCB under the Water Act.

CPCB
The mandate of the Central Pollution
Control Board (CPCB) is to set
environmental standards for all plants in
India, lay down ambient standards, and
coordinate the activities of the State
Pollution Control Boards (SPCBs)

SPCB

The implementation of environmental laws and their enforcement,

however, are decentralized, and are the responsibility of the SPCBs.
Anecdotal evidence suggests wide variations in enforcement across the
states
Power to obtain information: sec. 20
Failure to give information, fine Rs 10,000 or 3 month imprisonment

Power to take samples of effluents for analysis [ se. 21]

Modi Industries v U.P Pollution control Board
Samples not taken without the presence of the Occupier. Who is an Occupier ?
Chairman ? Can there be Vicarious liability that of the Master for the act of servant ?

Power to entry and inspection [sec. 23]

Examine any record, plant, document or any material object
Search and seizure shall be made in accordance with CPC

Power to impose restriction on new outlets and new discharge [sec. 25]
Narula Dyeing and Printing works v UOI 1995
Consent from PCB does not mean right to pollute

A P Pollution control Board v M V Nayudu 2001

Collector gave permission for land conversion for a industry, PCB refused. Can the
law of promissory estoppels be applied ? Is the consent from the PCB independent
of all other licenses ?

SPCB: Power contd.

Power to refuse or withdraw consent: sec. 27
Mahabir Soap v UOI 1995: Any refusal of consent is appeal able
under the State rules

Power to carry out certain works: sec. 30

Power to carry out emergency operations in case of
pollution of streams or well sec. 32
Power to make application to courts for restraining
apprehended pollution of water sec. 33
Application shall be made to a Judicial Magistrate

Power to give directions

Closure, prohibition or regulation of any industry, operation or
process
Stoppage or regulation of electricity, water or any other services.

Offences under the Act

Citizen suit provision: Any pvt individual
may prefer a complaint to the Judicial
magistrate after giving notice of 60 days to
SPCB
Fine and Imprisonment
UP Pollution control Board v Mohan
Meakins 2000
For imprisonment, head of department shall
be responsible.

Ground water

A model bill for regulating ground water use was circulated as early
as 1971 and an updated version was again distributed in 1992. Draft
bills have been presented in legislatures of several states including
Tamil Nadu and Karnataka but have never been enacted. So far
only Gujarat and Andhra Pradesh have actually addressed this
alarming depletion of natural resource
ground water is recognized as a chattel attached to the land
property Sec. 7 of the Indian Easement Act says, The Right of every
owner of land to collect and dispose within his own limits of all water
under the land which does not pass in a defined channel
At Coca-Cola's bottling unit in Nemam village of Tamilnadu, more
than 2.5 million liters of water are extracted. Of this, 1.2 million liters
is used for washing bottles, crates, equipment and the floors. Only
692,000--less than 30 percent--is used for actually manufacturing
the soft drinks

The Andhra Pradesh Water, Land

and Trees Act, 2002
is a remarkable piece of legislation, its
effectiveness on ground is yet to be tested. The
Act states all ground water resources in the
State shall be regulated by the authority. All
owners of well/water bodies shall get themselves
registered under the authority. The Designated
officer, with the approval of the authority may
prohibit water pumping on such area, likely to
cause damage to the ground water levelfor a
period of six month after which review may be
extent for a further period of not more than 6
months at a time.

F. K Husain v Union of India AIR 1990, Ker.

321 at 323
As early as in 1990 in, the Kerala High Court, while
reviewing the excessive withdrawal of ground water by
the local authority of lakshadweep to cater to the
demands of increasing population by the use of modern
groundwater technology held that the right to sweet
water and the right to free air are attributes of the right to
life, for, these are the basic elements which sustain life
itself.. the court acted upon the report of expert body
appointed by it and directed for a ceiling on withdrawal,
application of measures of safeguards, harvesting of
rainwater and desalination of water for conserving the
ground water resource.

 In Attackoya Tangal, excessive withdrawal

of ground water by the rich farmers in
Lakshadweep was controlled by the
Kerala High Court. This essentially
brought into light the need to bring about
better and efficient management of water
resources in the island of the country.

In Puttappa Honnapa Talawar AIR

1998 Kar. 10
The single Judge Bench of the High Court ruled that right
to life under Art. 21 included right to dig bore wells for
purpose of drawing ground water either for drinking or
cultivation or some other business or profession and that
this right could be regulated only law and not by
administrative directions. In the same background in
Venkatagiriappa v K. E B , the Divisional Bench of the
High Court held that the right to life could be held to
include right to have water for drinking purposes with
out which right to life cannot be enjoyed at all. However
the right to have water for irrigation purposes cannot be
stretched to the extent of bring it within the ambit of Art.
21 of the Constitution of India. The right to have subsoil
water for irrigation and business purposes may at the
most amount to right conferred under Art 300-A.

In Hamid Khan v. State AIR 1997

MP 191.

The State of M.P. had provided tube-wells for the supply of drinking
water to certain villages. Before digging the tube-wells, certain tests
had to be performed to determine the potability of the water. There
was no test for fluoride content among the tests prescribed. Due to
the high fluoride content of the water, a number of people had
contracted skeletal and dental fluorosis. This matter was brought to
the notice of the Court through this PIL. The relief in the judgment is
mainly based on the duties imposed on the state under various
articles of our constitution. The Court held that, under Art. 47 of the
Constitution of India, it is the responsibility of the State to raise the
level of nutrition and the standard of living of its people and he
improvement of public health. It is incumbent on State to improve
the health of public providing unpolluted drinking water.

Jagannath v Union of India AIR

1995 SC

ordered for closure of shrimp culture industry, which was established

in coastal zone or which resorted to ground water withdrawal for
aquaculture purpose. This meant that right to ground water for
commercial purposes cannot be claimed as a matter of right tot life.
M. C Mehta v Union of India [ground water case][AIR 1996 SC , the
Supreme Court raising alarm bells on the depleting water table in
Delhi asked NEERI to investigate, report and recommend measures
to abate such disaster. The Court monitored the constitution of the
Central Ground water Authority[2] so as to legal regulate
indiscriminate boring and withdrawal of underground water in the
country. But legislative incompetence of the Union to bring a
national law on the subject and inaction and hesitation of states
have obstructed the growth of law.

[2] A Central Groundwater Resource Management Authority, with

the composition as delineated in Section 6 of the EPA 1986

In M. P Rambabu v. The District Forest

Officer AIR 2002 A. P 256
The Court went one step further and held that Deep
Underground Water is the property of the State under
the doctrine of Public Trust. The holder of land has only
a user right towards the drawing of water in tube wells.
Thus, neither his actions nor his activity in any way can
harm his neighbors. A person who holds land for
agricultural purposes may, therefore subject to any
reasonable restriction that may be made by the State,
have the right to use water for irrigational purposes and
for that purpose he may even excavate a tank.

Enviro Legal Action v Union of

India AIR 1996 SC 1446

Bichhri, a small village in Udaipur District of Rajasthan had within its

vicinity the Hindustan Agro Chemical Limited, which produced
chemicals like Oleum etc. The real calamity occurred when a sister
concern, Silver Chemical, commenced production of H acid. Its
manufacture gave rise to enormous quantities of highly toxic
effluents-in particular, iron based and gypsum based sludge-which
is not properly treated pose grave threat to earth. Since the
untreated toxic was allowed to flow out freely and was in the open in
and around the complex, the toxic substances had percolated deep
into the earth polluting the aquifers and the subterranean supply of
water. The Water in the wells and the streams had turned dirty
rendering it unfit for human consumption. It had become unfit for
cattle to drink and for irrigating the land.

Possible Solution
1. The concept of Pani Panchayat would be best
possible remedy.
2. Should water be treated as a good; Is these good
free?; Privatization of water in terms of operation and
maintenance and desalination is being undertaken in
Chennai under PPP model.
If I sink a borewell in my property, is it pvt of water ?
3. The ideology under the NAFTA treats
water first a service, then a natural resource, never a
right

Solutions
5. Building big dams across rivers, ; has it served the
purpose of providing basic drinking water to the masses?
6. Integration of administration managing water;
7. Can rain water harvesting be a possible solution?
Govt of AP GO 9th June 200: Asked town and country
planning authority, every building construction of plots
having extent of 300 sq mts shall provide for rain water
harvesting
Provision was made for terrace water collection: percolation into
pits and trenches

Amendment to Chennai Municipal Corporation Act 1919:

Inserting of Sec. 255A in 2003 provides for rain water
harvesting
Kerala Municipality Building Rules 1999

Basic of a New Paradigm

Duty to Cooperate
Conjunctive Management
Integrated Management
Equitable Utilization
Sustainable Use
Minimization of Environmental harm