Water and the legislation to keep it non polluted

By Miss Charu Gupta MSc. Environment Management Project Director Indira Gandhi Center for Environment Protection www.igcep.com

Foreword

It was a shame on us that we the people of India had to legislate an act for preventing and controlling pollution of WATER by our own countrymen. The law of the land can not provide non contaminated Milk to the children; can not provide non contaminated eatables to the people of India and not even pure water. What to talk about enemies of the country who can pollute the rivers to win scores on us, our own fellow citizens pollute the rivers which are very essential for life. Shame on the regulators who for their greed for money let the enemies of common man of India, to pollute the water of Rivers and streams. Shame on Indian Industrialists and municipalities which discharge untreated water in the Rivers. Is this the Indian Culture? We have not prosecuted the offenders of the acts for polluting our sacred Rivers.

The Water (Prevention and Control of Pollution) Act, 1974

The need for legislating the act was felt in the year 1962, it was the same year when Independent India fought its first war with China. A committee was set up in 1962 to draw a draft enactment for the prevention of water pollution. The reason for legislating the act was given as The problem of pollution of rivers and streams has assumed considerable importance and urgency in recent years as a result of the growth of industries and the increasing tendency to urbanization. The object for legislating the act was given as It is, therefore, essential to ensure that the domestic and industrial effluents are not allowed to be discharged into the water courses without adequate treatment as such discharges would render the water unsuitable as sources of drinking water as well as for supporting fish life and for use in irrigation. Pollution of rivers and streams also causes increasing damage to the countrys economy.

Pollution defined in the Act

It means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial industrial agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms. (section 2(e) of the Act)

Legal Corporate Entities

The Act prescribed constitution of two types of Legal Corporate Entities for proper discharging of the functions and for exercising the powers under the Act. One Central Board constituted under section 3 of the Act. State Pollution Control Boards constituted in respective states under section 4 of the Act.

Scope and applicability of Sec.4

The reading of section 4 clearly shows that is it obligatory on the State Governments for the proper discharge of function and exercise of powers under the Act to constitute a Board as a Legal Corporate Entity consisting of all its components mentioned in sub section (2) representing various interests and under sub-section (1) of section 4. A notification in Official Gazette is required to be issued only for appointing a day with effect from which such a Board is to function. The powers and functions that are referred to in the Act at various places are the powers and functions to be exercised and performed by such a Board as required to be constituted under sub section (2). Since the section itself makes such a Board a body corporate, it only means that all the elements and / or components of the Board as mentioned in sub-subsection (2) taken together and not individually would alone constitute a board as contemplated under the Act. [H.C.Kathiwala v. Maharashtra Water (Prevention and control of Pollution)
Board, 1982 Cr. L. R. 290 p. 295(Bom); R.P. Shavi v. State of Karnatka, 1990 (1) Bang. L.J. 142 at p.144 (Kant): Kar. L.J. 78 at p. 81]

Constituents of a State Board

A member Chairman : being a person having special knowledge or practical experience in respect of 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. (he may be either whole-time or part-time as the State Government decides) The State Government can nominate not more than five of its officials as members to represent itself in the Board. The State Government can nominate not more than five persons to be members of the Board who are members of local authorities functioning within that state. The state Government can nominate not more than three persons who are non officials but who can represent the interest of agriculture, fishery or trade or industry or any other interest which in its opinion to be represented. The state Government can nominate two persons from the companies or corporations owned or controlled by it. A full time Member Secretary of the Board has to be appointed by the State Government, who posses qualification, knowledge and experience of scientific, engineering or management aspects of pollution control. (The above said provisions under section 4 of the Act are clear that the member chairman must be from the field relating to environment protection and the member secretary must be from the field of pollution control) The State Pollution Control Boards functioning in India were constituted under this ACT. The terms and conditions of Members have been prescribed in the Act. The manner by which a Member can be disqualified has been prescribed in the Act.

Meetings of the Board

A board shall meet at least once in every three months and shall observe such rules of procedure in regard to the transaction of business at its meeting as may be prescribed. Provided that if, in the opinion of the Chairman, any business of an urgent nature is to be transacted, he may convene a meeting of the Board at such time as he thinks fit for the aforesaid purpose.

Powers and Duties of the Member Secretary of the Board

Member Secretary of a Board is the only member of the Board who is appointed and not nominated by the State Government. He is the only one who has to be full time Member of the Board. He is the only one whose term as a member of the Board is not fixed for three years. All the other members of the Board have to vacate the office after their successors enter upon their office by virtue of their appointment. The terms and conditions of service of the Member-Secretary has to be prescribed by the State Government. The duties and powers of the Member Secretary has to be prescribed by the State Government or has to be delegated by the Board or the Chairman of the Board.

Regarding officers and other employees of the Board

State Pollution Control Board may appoint such officers and employees as it considers necessary for the efficient performance of its functions but subject to rules made by the State Government. State Pollution Control Board has to make regulations regarding the method of recruitment, scale of pay and terms and conditions of service of its officers and other employees and those regulations has to be approved by the state government. State pollution control Board may delegate its power and functions under this act to its officers though on conditions and limitations by issuing a special or general order. State pollution control board may appoint a consulting engineer on such salaries and allowances while imposing terms and conditions of service to be rendered to it. The state government has been vested with the power in regard to the matters relating to the appointment of the officers and employees in the board and the power of the board to create and abolish the posts is not absolute but at the same time the state government does not have the power to interfere with the decision of the Board in such manner which virtually amounts to taking away the autonomy of the board. The Government can only act in accordance with the powers emanating from the provisions of the Act or the Rules framed thereunder and not otherwise. [Shailendra Kumar v. State of Bihar, 1996 Lb. I.C. 1631

at p. 1634 (pat.) ]

Functions of the State Board

Functions of a State Board has been prescribed in section 17 of the Act as well as of the Air Pollution Act, 1981. But the state pollution board have confined themselves only to grant consents to the industries. After the legislation of Environment (Protection) Act, 1986 wherein the Standards for Effluent has been prescribed in the EP Rules, the Boards merely mentioned those rules in the conditions of the consent. Moreso Boards are issuing consent with the condition Zero Discharge without ensuring whether this condition could be met or complied by the Industry.

Applicability of Environment Protection Act and its Rules.

Environment Protection Act prohibits any person to discharge or permit to be discharged any environmental pollutants in excess of standards prescribed in schedule 1to VI of the Environment Protection Rules. State Boards have to enforce such standards prescribed in EP Rules Every person requiring consent under section 25 of the Water Act has to submit Environment Statement to the State Board (Rule 14 of the Environment Protection Rules 1986. State Board can not permit any person to discharge environment pollutants in contravention of Standards prescribed in schedule 1 to VI of EP Rules, by issuing Consent under the Water Act.

Prohibition on use of stream or well for disposal of polluting matter, etc;

There are prohibitions on the persons against causing or permitting any poisonous, noxious or polluting matter for entering whether directly or indirectly into any stream or well or sewer or on land, above than the standards laid down for the same. [section 24(1)(a)] 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. [section 24(1)(b)] The prime object of the Act as declared in the preamble and embodied in the provisions of Section 24 is to provide for prevention and control of water pollution and the maintaining and/or restoring of wholesomeness of water. Therefore, provisions ar made to prevent direct or indirect entry into any stream, well or polluting water.( Dahyathai Soanki v. State of Gujrat, 2003 Cr. L. J. 767 at p. 772)

Six wholesome principles:

All human beings have the fundamental right to unpolluted environment, pollution free water and air. The State is obligated to preserve and protect the environment. It is mandatory for the State and its agencies, to conceive, anticipate prevent and attack the cause of environmental degradations. The industry cannot be permitted to continue, as a matter of right, in case it creates pollution. The polluter must meet the cost of repairing environment and ecology and pay reparation to those, who have suffered because of the pollution, caused by him. Considerations of economy cannot prevail over concerns for environment and ecology.

(Vijay Singh Punia v. Rajasthan State Board for Prevention and control of Water Pollution. A.I.R. 2003 Raj. 286 at pp. 286,287,296,297)

Restrictions on new outlets and new discharges. (section 25)

Section 25 of the Water Act, prescribes restrictions on new out-lets and new discharges. It inter alia provides that no person shall, without the previous consent of the State Board, establish any industry or process which is likely to discharge sewerage or trade effluent into the stream or well or sewer or on land. The Consent of the State Board can be obtained by an application made under section 25(2) of the Water Act, under sub section(4) of sec. 25, the State Board may grant its consent specifying the validity period, subject to conditions as it may impose. The State Board may impose conditions including conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the premises from which the discharge is to be made. State Board may refuse consent by giving reasons in writing. The state boards have also been empowered to issue notices imposing conditions to those industries and others which have not taken consent from it under sub section 5 of this section. It has been mandatory for the State Boards to maintain a register containing particulars of the conditions imposed on such consents for public inspection under sub section 6 of this section. An application of consent after the expiry of four months deemed to be given unconditionally if it has not been given or refused earlier.

Deemed Consent

a. b.

c.

The provisions which make an application for consent for new outlets as deemed consent has been prescribed in sub-section 7, and can be summarized as follows: The application has been filed under sub-section 1 of section 25. The application has not been disposed off by the state Board within four months of filing the application. It would be a consent without any condition.

Power of Board to make application to courts for restraining apprehended pollution of water in streams or well. (section 33)

This section gives power to the board to make an application to a Court not inferior to a Presidency Magistrate or a Magistrate of the First Class, for restraining a person who was likely to cause pollution as mentioned in Section 33(i) from so causing it. Noncompliance with the directions given by the Court under the said section 33 has been made an offense punishable under Section 41(2) of the Act.

Refusal or withdrawal of consent by State Board

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 a consent under Section 25 or Section 26 is granted a notice making any reasonable variation of or revoking any such condition. A State Board may review the refusal of any consent referred to in sub-section 1 of section 25 or Section 26. A State Board may review the grant of any consent without any condition (it includes Deemed Consent)

Funds, Accounts and Audit

The Boards constituted under this act will have its own funds and my expend such sums as those think fit for performing its functions under this Act or Air Act. (Section 37) The Central Board or as he case may be the State Board shall during each financial year, prepare in such form and at such time as may be prescribed, a budget in respect of the financial year next ensuing the estimated receipt and expenditure, and copies thereof shall be forwarded to the Central Government or, as the case may be, the State Government. (Section 38) The Boards constituted under this act shall have to prepare an annual report giving full account of their activities to the Central Government in the case of Central Board and to the State Government in the case of State Board within four months from the last date of the previous financial year and the Governments have to place them before Both the Houses of Parliament in the case of Central Government and before the State Legislative within a period of nine (9) months from the last date of previous financial year. (Section 39) Every Board shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government or as the case may be the State Government. The accounts of the Board shall be audited by an auditor duly qualified to act as an auditor of companies under section 226 of the Companies Act and the Auditor has to be appointed by the Central Government in the case of Central Board and by the state Government in the case of State Board. (Section 40) It will be the responsibility of the Auditor to sent his report along with an audited copy of the accounts to Central Government or to State Government as the case may be. (Section 40) Both the governments as the case may be after receiving such audit reports place before the Both Houses of Parliament or before the State Assembly (Section 40)

Penalty and Procedures

Whoever fails to comply with any directions 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 every day during which such failure continues after the conviction for the first such failure. Whoever fails to comply with any order issued under Clause of sub-section (1) of section 32 or any directions issued under Section 33(2), shall, in respect of 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. If the failure referred above 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 Penalty for contravention of section 24, 25 and six is 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.

Applicability of Indian Penal Code

All Members, Officers and servants of the Board when acting or purporting to act in pursuance of any of the provisions of this Act and the rules made thereunder shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code. (Section 50)

Water Laboratory and Analysts

The Central Government can establish a Central Water Laboratory by issuing a Notification in the Official Gazette and can make rules regarding it after consulting the Central Board. The State Government can establish a State Water Laboratory by issuing a Notification in the Official Gazette and can make rules regarding it after consulting the Central Board. The Central Government or the State Government can appoint Analysts for the purpose of analyzing the samples. The Central Board with the approval of Central Government and the State Board with the approval of State Government can appoint persons to be Boards Analysts through notifications in Official Gazette for the purpose of analyzing the samples.

Power to supercede the Boards

Central Government has power to the Central Board under section Act. The State Government has supercede the State Board under of the Act.

supercede 61 of the power to section 62

Power to Make Rules

The Central Government has power to make rules at the time of constituting the Central Board without consulting it but once the Central Board has been constituted it can make rules or amend rules only after consulting the Central Board. (Section 63) The State Government has power to make rules at the time of constituting the State Board without consulting it but once the State Board has been constituted it can make rules or amend rules only after consulting the State Board. (Section 64)

Board : an entity

To perform such functions and to issue such orders prescribed in the Act, a Board has to be constituted by the State Government, as per the Statutory Provisions. To expand from its funds, the State Government has to appoint an auditor as per the provisions of the Act. It has to prepare its annual activity report to be placed before the state assembly. The Auditor appointed by the State Government has to send its report along with the audited copy of the accounts for laying before the State Assembly. For maintaining its account the Board has to appoint such persons who are experienced and well qualified in the field.

About State Board Uttarakhand

Uttarakhand Environment Protection and Pollution Control Board is not such board which has been envisaged under the Water Act, 1974. It is a bad process of Law because neither the State Government nor the State Board is serious about the provisions of The Water Act, 1974.

Recommendation

The so called Uttarakhand Environment Protection and Pollution Control Board be taken over by the Central Board with immediate effects and a direction be issued to the Government of Uttarakhand to reconstitute the Board as per the Provisions of The Water Act, 1974

Few words

I really thank everyone of you who have given his or her little time to view this presentation and request that an immediate action be taken if you are an authority to do so or must write to Ministry of Environment and Forests for taking action till it is too late.

Do write to me for any discrepancy. charu@igcep.com