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Functions of PCB Under the

Water Act

Dr. Sairam Bhat

Associate Professor of Law

National Law School of India University.

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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 r iver andstream, Ganga action plan, Yamuna river

pollution and other related cases

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The Problem

4. Over exploitation: Punjab utilizes 98.34% ofits ground water, where as Haryana utilizes

75.61% and Orissa 15.22 %

5. Contamination: Surface and ground bywaste mismanagement; land contamination.

Increase of salinity etc.

6. The National Water Policy 2002 speak largein sense of command and control of the

government in water.

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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 otherresources]

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How to treat water[Tragedy of the Commons]

Water Right [Fundamental right]

Rights in relation to water [legal right]

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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]

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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 anOccupier ? Chairman ? Can there be Vicarious liability that of the Masterfor 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 thePCB independent of all other licenses ?

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SPCB: Power contd. Power to refuse or withdraw consent: sec. 27

Mahabir Soap v UOI 1995: Any refusal of consent is appeal ableunder the State rules

Power to carry out certain works: sec. 30

Power to carry out emergency operations in case ofpollution of streams or well sec. 32

Power to make application to courts for restrainingapprehended 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 orprocess

Kedia Leather Company Case: Speaker Order

Stoppage or regulation of electricity, water or any other services.

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Offences under the Act Citizen suit provision: Any pvt individual

may prefer a complaint to the Judicialmagistrate after giving notice of 60 days toSPCB

Fine and Imprisonment UP Pollution control Board v Mohan

Meakins 2000

For imprisonment, head of department shallbe responsible.

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Judicial Activism in Water

Vellore Citizens Welfare Forum case JT

1996 (7) SC 375

M. C Mehta v Kamal Nath 1997 (1) SCC

388

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Ground Water

Law, policy and Management

Jagannath v Union of IndiaAIR 1995 SC F. K Husain v Union of IndiaAIR 1990, Ker. 321 at 323

Puttappa Honnapa TalawarAIR 1998 Kar.10

Enviro Legal Action v Union of IndiaAIR

1996 SC 1446

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The Problem

Low water rates are also a reason fornon compliances.

Inter State water disputes.

Exploited as an Easementary right

Interlinking of rivers

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Solution ?

Rain Water Harvesting ?

Dam Building ?

Privatization ?

Coca Cola, Plachimada Unit, (Palakkaddistrict)

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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, Parliamentpursuant to enabling resolution by twelvestates, under Art. 252(1) of the

Constitution passed the above Act.

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Pollution means:

Contamination of water

Alteration of the physical, chemical or

biological properties of water

Discharge of any sewage or trade effluentor any other liquid, gaseous or solid

substance into water [whether directly or

indirectly]

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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 theprocedure showed a blind eye toward the ongoing environmental

degradation. The Company was carrying on the business ofpreparation 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 theWater Act had failed to establish a treatment plant in the factoryinspite of repeated notices issued by the PCB. The PCB had failed

to adhere to the sampling procedure so established by the WaterAct, wherein samples of such trade effluents must be taken in twocontainers and the sample must be tested in a recognizedGovernment lab. Failing this procedure the High Court dropped thecharges against the company. The Courts reasoning was that the

samples were not taken in strict compliance with Sec. 21 and areinadmissible in evidence.

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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 onthe Nagar Mahapalikas. The court emphasizedthat it is the Municipality of Kanpur that has tonear the major responsibility for the pollution ofthe river near Kanpur city.

2. Kanpur tanneries case

3. Kolkatta tanneries case: 500 industries along

with banks of river ganga were covered by thejudgment

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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 wouldbe wholly justified to make them a subject of private ownership. The doctrine enjoins uponthe government to protect the resources for the enjoyment of the general public ratherthan to permit their use for private ownership or commercial purpose. The protection ofecological values is amongst the purposes of public trusts. The state is the trustee of allnatural resources which are by nature meant for public use and enjoyment. It is under alegal 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 permittedto 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 saidresources. Areas which are ecologically fragile and full of scenic beauty should not bepermitted to be converted into private ownership for commercial gains. The illegalconstruction and callous interference with the natural flow of river Beas has degraded theenvironment. 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 thepresent case. The court directed the Himachal Pradesh PCB to inspect the motelpremises, its treatment facilities and to re-direct the course of the river.

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

The Court held that even a major foreign exchange earner like leather industrycannot have the right to destroy ecology, degrade the environment and pose ahealth hazard. It cannot be permitted to expand or even to continue unless ittackles the problem of pollution created by the said industry. The polluterpays principle and precautionary principles are the law of the land. Thepolluting industries were made absolutely liable to compensate for the harmcaused by them to villagers in the affected area, to the soil and to theunderground water and hence they were directed to take all necessarymeasures to remove sludge and other pollutants lying in the affected area. An

authority was constituted by the Apex Court to investigate take mitigatingsteps in reducing the ecological damage caused by the tanneries in this area..The Authority shall direct the closure of the industry owner/ managed bypolluter in case he evades or refuse to pay compensation. This shall be inaddition to the recovery from him as arrears of land revenue. A Pollution fineof Rs. 10,000 was imposed on each tanneries. The PCB to establish a

Common Effluent Treatment facility and to close down any tanneries whichfails to obtain the consent of the PCB under the Water Act.

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CPCB

The mandate of the Central Pollution

Control Board (CPCB) is to setenvironmental standards for all plants in

India, lay down ambient standards, and

coordinate the activities of the State

Pollution Control Boards (SPCBs)

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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 thestates

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 thelaw of promissory estoppels be applied ? Is the consent from the PCB independentof all other licenses ?

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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 ofpollution of streams or well sec. 32

Power to make application to courts for restrainingapprehended 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 orprocess

Stoppage or regulation of electricity, water or any other services.

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Offences under the Act Citizen suit provision: Any pvt individual

may prefer a complaint to the Judicialmagistrate after giving notice of 60 days toSPCB

Fine and Imprisonment UP Pollution control Board v Mohan

Meakins 2000

For imprisonment, head of department shallbe responsible.

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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 includingTamil Nadu and Karnataka but have never been enacted. So faronly Gujarat and Andhra Pradesh have actually addressed thisalarming depletion of natural resource

ground water is recognized as a chattel attached to the landproperty 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 waterunder the land which does not pass in a defined channel

At Coca-Cola's bottling unit in Nemam village of Tamilnadu, morethan 2.5 million liters of water are extracted. Of this, 1.2 million litersis used for washing bottles, crates, equipment and the floors. Only

692,000--less than 30 percent--is used for actually manufacturingthe soft drinks

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The Andhra Pradesh Water, Land

and Trees Act, 2002 is a remarkable piece of legislation, its

effectiveness on ground is yet to be tested. TheAct states all ground water resources in theState shall be regulated by the authority. Allowners of well/water bodies shall get themselvesregistered under the authority. The Designatedofficer, with the approval of the authority mayprohibit water pumping on such area, likely tocause damage to the ground water levelfor aperiod of six month after which review may beextent for a further period of not more than 6months at a time.

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F. K Husain v Union of IndiaAIR 1990, Ker.

321 at 323

As early as in 1990 in, the Kerala High Court, whilereviewing the excessive withdrawal of ground water bythe local authority of lakshadweep to cater to thedemands of increasing population by the use of moderngroundwater technology held that the right to sweetwater and the right to free air are attributes of the right to

life, for, these are the basic elements which sustain lifeitself.. the court acted upon the report of expert bodyappointed by it and directed for a ceiling on withdrawal,application of measures of safeguards, harvesting of

rainwater and desalination of water for conserving theground water resource.

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InAttackoya Tangal, excessive withdrawal

of ground water by the rich farmers inLakshadweep was controlled by the

Kerala High Court. This essentially

brought into light the need to bring aboutbetter and efficient management of water

resources in the island of the country.

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In Puttappa Honnapa TalawarAIR

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 orcultivation or some other business or profession and thatthis right could be regulated only law and not byadministrative directions. In the same background inVenkatagiriappa v K. E B , the Divisional Bench of theHigh Court held that the right to life could be held toinclude right to have water for drinking purposes without which right to life cannot be enjoyed at all. Howeverthe 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 subsoilwater for irrigation and business purposes may at themost amount to right conferred under Art 300-A.

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In Hamid Khan v. StateAIR 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. Therewas no test for fluoride content among the tests prescribed. Due tothe high fluoride content of the water, a number of people hadcontracted skeletal and dental fluorosis. This matter was brought tothe notice of the Court through this PIL. The relief in the judgment ismainly based on the duties imposed on the state under various

articles of our constitution. The Court held that, under Art. 47 of theConstitution of India, it is the responsibility of the State to raise thelevel of nutrition and the standard of living of its people and heimprovement of public health. It is incumbent on State to improvethe health of public providing unpolluted drinking water.

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In M. P Rambabu v. The District Forest

OfficerAIR 2002 A. P 256

The Court went one step further and held that DeepUnderground Water is the property of the State under

the doctrine of Public Trust. The holder of land has onlya user right towards the drawing of water in tube wells.Thus, neither his actions nor his activity in any way canharm his neighbors. A person who holds land for

agricultural purposes may, therefore subject to anyreasonable restriction that may be made by the State,have the right to use water for irrigational purposes andfor that purpose he may even excavate a tank.

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Enviro Legal Action v Union of

IndiaAIR 1996 SC 1446 Bichhri, a small village in Udaipur District of Rajasthan had within its

vicinity the Hindustan Agro Chemical Limited, which producedchemicals like Oleum etc. The real calamity occurred when a sisterconcern, Silver Chemical, commenced production of H acid. Itsmanufacture gave rise to enormous quantities of highly toxiceffluents-in particular, iron based and gypsum based sludge-whichis not properly treated pose grave threat to earth. Since theuntreated toxic was allowed to flow out freely and was in the open in

and around the complex, the toxic substances had percolated deepinto the earth polluting the aquifers and the subterranean supply ofwater. The Water in the wells and the streams had turned dirtyrendering it unfit for human consumption. It had become unfit forcattle to drink and for irrigating the land.

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Possible Solution 1. The concept of Pani Panchayat would be best

possible remedy.

2. Should water be treated as a good; Is these goodfree?; Privatization of water in terms of operation andmaintenance and desalination is being undertaken inChennai 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

r ight

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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 countryplanning authority, every building construction of plots

having extent of 300 sq mts shall provide for rain waterharvesting 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 waterharvesting

Kerala Municipality Building Rules 1999

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Basic of a New Paradigm Duty to Cooperate

Conjunctive Management

Integrated Management

Equitable Utilization Sustainable Use

Minimization of Environmental harm